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NO. 09-1196
IN THE SUPREME COURT OF OHIO
APPEAL FROM
T'HE COURT OF APPEALS FOR CUYAHOGA COUNTY, 01110
NO. 91429
STATE OF OHIO,
Plaintiff-Appellant
-vsLARRY BESS,
Defendant-Appellee
MERIT BRIEF OF APPELLANT
Counsel for Plaintiff-Appellan
WILLIAM D. MASON
Cuyahoga County Prosecutor
T. ALLAN REGAS (0067336)
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
(216) 443-7800
Counsel for Defendant-Appellee
DAVID L. DOUGHTEN
4403 St. Clair Avenue
Cleveland, Ohio 44103
TABLE OF CONTENTS
SUMMARY OF TIIE CASE ......................... ....... .......................... .............................. ........................................... .1
LAW AND ARGUMENT ........................................................................................................................................5
The statute of limitations tipon criminal offenses is tolled pursuant to former
R.C. §2901.13 (G) when the accused purposely avoids prosecution for an
offense.
CONCLUSION ....................................................................................................................................................... 14
SERVICE ................................................................................................................................................................. 14
Appendices
Time-stamped Notice of Appeal ......................................................................................................................1
State v. Bess, (May 26, 2009,)Cuyahoga App. No. 91429 ........................................................................4
R.C. 2901.13,1972 fI 511 eff. 1-1-74 .......................................................................................................... 23
R.C. 2901.13 .......................................................................................................................................................... 24
R.C. 2945.72 .......................................................................................................................................................... 28
TABLE OF AUTHORITIES
Cases
Brouse v. United States, 68 F.2d 294, 296 (1st Cir. 1933) .....................................................8
King v. United States, 1.44 F.2d 729, 731 (8th Cir. 1944), cert. denied, 324 U.S. 854, 65 S.Ct.
711, 89 L.F.d. 1413 ( 1945) .............................................................................................8
Slingiuffv. Weaver ( 1902), 66 Ohio St. 621, 64 N.E. 574 ......................................................8
State v. Bess, Cuyahoga App. No. 91560, 2009-Ohio-2032 ...............................................3, 5
State v. Bixler, Putnam App. No. 12-03-18, 2004-Ohio-2468 .......................................11, 12
State v. Climaco, Climaco, Seminatore, Lejkowitz & Garofoli Co., L.P.A. (1999), 85 Ohio St.3d
582, 586, 709 N.E.2d 1192, 1195 ...................................................................................7
State v. Hensley ( 1991), 59 Ohio St.3d 136, 138, 571 N.E.2d 711, 714 .................................7
State v. Iforen (Jan. 24, 1985), Cuyahoga App. No. 48461 ............................................10, 11
State v. McGraw ( Jun. 16, 1994) Cuyahoga App. No. 65202 ...............................................12
State v. Robinson, Slip Opinion No. 2009-Ohio-5937 ...........................................................9
State v. Swartz, 88 Ohio St.3d 131,132-33, 723 N.E.2d 1084,1086, 2000-Ohio-277 .............7
7'omas•ik v. Tomas•ik, 1110hio St.3d 481, 483, 857 N.E.2d 127, 129, 2006-Ohio-6109.......... 9
U. S. v. Gonsalves, C.A.9 (Cal.) 1982, 675 F.2d 1050 .... .........................................................8
Statutes
R.C. 2903.13 .. ........................................................................................2, 4, 5, 6, 7, 8, 12
R.C. 2901.13 ( A) ................................................................................................................ 5
R.C. 2901.13 ( B) ................................................................................................................6
R.C. 2901.13(C) .................................................................................................................6
R.C. 2901.13(D) .. ..............................................................................................................6
R.C. 2901.13(F) ........................... ........ ........................................... ................................ 6
R.C. 2901.13(G) .... ....................................................................................1, 4, 5, 9, 12, 13
R.C. 2901.13 ( H) ................................................................................................................ 6
R.C. 2903.13( G) ..............................................................................................................10
Other Authorities
18 U.S.C. § 3290 ................................................................................................................7
11
I. SUMMARY OF THE CASE
Appellee Larry Bess was a fugitive for 18 years, living under an assumed identity in
another state alter fleeing Ohio to evade prosecution for the rape of minor child, Jane Doe.
After Appellee's arrest, John Doe, Jane Doe's brother, came forward with details of
Appellee's niolestation against him. The State of Ohio brought charges against Appellee for
the rape of John Doe after his arrest.
Prior to trial, Bess filed motions to dismiss both the prior filed charges in the case
detailing his abuse of Jane Doe and the charges filed after he was brought to justice
detailing his abuse of John Doe. The trial court denied the motion to dismiss the Jane Doe
case, but granted the motion to dismiss the John Doe case. The cotirt of appeals affirmed
the trial court's decisions. It found that Appellee could evade prosecution for his crimes
against John Doe by fleeing the jurisdiction after learning of pending charges in the Jane
Doe case. In doing so, the Appellate court added an element of knowledge by a fugitive of a
specific prosecution for a specific offense in order for Ohio's general statute of limitations
statute to be tolled. R.C. 2901.13(G), the law that tolls the statute of limitations where "an
accused purposely avoids prosecution" contaitts no element of specific knowledge and such
element defeats the purpose of the tolling provision. The appellate court has demonstrated
a roadmap for other Ohio felons to follow on their path to evade justice:
1) Commif a serious undetected offense,
2) Commit a minor detected offense,
3) Leave the state to avoid prosecution for the minor offense, and
4) Return after the statute of limitations has run for the serious offense and avoid
any and all prosecution for that offense.
The appellate rule interpreting Ohio's tolling statute not only provides the simple method
above to easily avoid prosecution, but allows a felon to evade prosecution even if that
major offense is discovered and an indictment is issued after he flees the state to purposely
avoid prosecution on the minor offense.
Because the appellate opinion in this case has provided critninals a how-to manual
to get away with all crimes other than murder, this Court should reverse this case and
ensure that Ohio's statute of limitations and its tolling provisions are read without
judicially grafted conditions that defeat the purpose and intent of the law. That State asks
that this Court adopt as law its Proposition of Law:
The statute of limitations upon criminal offenses is tolled pursuant to former
R.C. §2901.13(G) when the accused purposely avoids prosecution for an
offense.
It is necessary to adopt the State's Proposition of Law in this matter so that fugitives from
justice can be held accountable for their crimes and to ensure that justice may be done on
behalf of the citizens of the State of Ohio.
iI. STATEMENT OF TIIL' CASE AND FACTS
Appellee was under indictment in Cuyahoga Court of Common Please Case No.
243403 for three charges of rape and seven charges of gross sexual imposition. Those
charges alleged crimes were comtnitted against "Jane Doe" then a minor child and younger
sister of John Doe. Appellee was indicted in Case No. 243403 in November, 1989 and fled
the jurisdiction aware of the charges in that case. In March, 2007, Appellee was arrested
after being discovered living under an alias in another state.
After Appellee was returned for trial in Ohio, John Doe came forward alleging that
he too was molested by Appellee. The Cuyahoga County Grand Jury indicted Appellee in
2
Cuyahoga County Court of Common Pleas Case No. 495093, charging 6 counts of rape, one
count of attempted rape, one count of complicity in rape, and two counts of gross sexual
imposition upon John Doe. The charges spanned a period of time of June ]., 1982 to
February 21, 1989; at that time John Doe was a minor child with a date of birth of March
151h, 1973.
Appellee filed a motiomi to dismiss the indictments in both Case No. 243403 and
495093. The trial court took evidence on the motions and granted the motion to dismiss
the indictment in this case regarding the abuse of John Doe, but denied the motion in Case
No. 243403 regarding the abuse of John Doe. That case proceeded to trial and Appellee
was found guilty of three counts of rape and two counts of gross sexual imposition. His
convictions were affirmed. State v. Bess, Cuyahoga App. No. 91560, 2009-Ohio-2032.
At the trial court, the following witnesses testified: Theresa Ogden-Bess, Appellee's
ex-wife and mother of John and Jane Doe; John Doe; Detective Douglas Jopek; and Detective
David Sword. Theresa Ogden-Bess testified that she was married to Bess in 1986 and that
in 1989, after Jane Doe tnade allegations of sexual molestation, Bess made plans to change
his identity because he didn't want to go to jail. John Doe testified that he was born on
March 15th, 1973 and that Appellee lived with his family from 1982 or 83 to 1989.
John Doe averred that he remembered that in 1989, the police investigated Appellee
regarding Jane Doe, his younger sister. At that time, John Doe had not disclosed any abuse;
however, prior to Appellee's indictment, John Doe talked with Appellee about his sister
Jane Doe. In that conversation, Appellee admitted the sexual acts he committed against
John Doe, but denied doing anything to Jane Doe.
3
Cuyahoga County Deputy Sheriff, Detective Douglas Jopek testified that Appellee
was arrested on March 5111, 2007. Detective David Sword of the North Royalton Police
Department testified that John Doe met with him after Appellee's arrest in 2007. IIe stated
that was the first disclosure of sexual abuse of John Doe to the North Royalton Police
Department.
After hearing the above evidence, the trial court determined that Appellee was
aware that he was going to be indicted and was "underway with plans to leave." The trial
court further noted that the state periodically attempted to locate Appellee, but that "while
there is a post-indictment delay in [Case No. 246403] it's attributable to the actiorts of
defendant." It denied the motion to dismiss that case. However, on April 14, 2008, the trial
court issued its opinion finding that Appellee's flight from prosecution was not applicable
to the charges brought by John Doe, "since Defendant was not on notice that any charges
were contemplated involving [John Doe]." Journal Entry, p.2.
Appellant, the State of Ohio, souglrt review of the trial court's dismissal of the
indictment. Over a dissentitig opinion, the appellate court found that R.C. §2901.13(G)
requires specific knowledge on the part of the accused that crimes were discovered and a
specific intent to flee the jurisdiction to evade prosecution for crimes that were discovered
in order to toll the statute of limitations. The language of the statute requires no element of
specific knowledge for the statute of limitations to be tolled.
In affirming the trial court's determination that the state could not prosecute
Appellee despite his 18-year flight from justice, the Eighth District Court of Appeals
determined that R.C. §2901.13(G) did not apply to crimes that were not discovered. At the
tinie of Appellee's crimes, R.C. 2901.13(G) read:
4
G) The period of limitation shall not run during any time when the accused
purposely avoids prosecution. Proof that the accused absented himself from
this state or concealed his identity or whereabouts is prima-facie evidence of
his purpose to avoid prosecution.
The evidence presented to the trial court in this case was definitive; Appellee
purposely fled the jurisdiction to avoid prosecution. He was specifically aware he would be
indicted for sexually molesting Jane Doe, a young girl related to John Doe. He was
eventually tried and convicted for those crimes. See, State v. Bess, Cuyahoga App. No.
91560, 2009-Ohio-2032, appeal not allowed, 122 Ohio St.3d 1506, 912 N.E.2d 109, 2009Ohio-4233 (Ohio Aug 26, 2009) (Table, NO. 2009-1021). However, the indictment in this
matter alleging that Appellee committed 6 counts of rape, one count of attempted rape, one
count of complicity in rape and two counts of gross sexual imposition upon John Doe from
June 1, 1982 to February 21, 1989 cannot be prosecuted uncler the appellate court's
interpretation of R.C. 2901.13(G) the provision that tolls the statute of limitations for
criminals who act to purposely avoid prosecution.
Ill. LAW AND ARGllMENT
At the time of Appellee's crimes, the State's ability to prosecute sexual felonies was
limited by R.C. 2901.13, which provided a six-year statute of limitations for the prosecution
of felony offenses otlier than murder. See, R.C. 2901.13(A), 1972 H 511, eff.1-1-741.
Although it imposed time restrictions on felony prosecutions by enacting R.C.
2901.13, the legislature did not make the time under the statute of limitations absolute;
instead, it provided several circumstances that tolled of extended the time to bring
prosecution. It extended the time to prosecute fraud until one year after discovery of such
1 The statute of limitations for sexual offenses has since been expanded to a term of 20
years. See, R.C. 2901.13(A)(3).
5
fraud. R.C. 2901.13(B). It tolled the time a prosecution may be brought against a public
servant for an offense of misconduct in office. R.C. 2901.13(C). It provided that the last
criminal act in a course of conduct would serve to commence the statute's time calculation
in R.C. 2901.13(D). It tolled the time where the corpus delicti of the crime remained
undiscovered. R.C. 2901..13(F). It tolled the time when any prosecution for the same
conduct occurred or was pending in the state in R.C. 2901.13(H). Those tolling events
listed were all limited in some manner to specific crimes or defendants.
In contrast to the specificity in those subsections of R.C. 2903.13, the law provided
one general tolling event. It read2:
(G) The period of limitation shall not run during any time when the accused
purposely avoids prosecution. Proof that the accused absented himself from
this state or concealed his identity or whereabouts is prima-facie evidence of
his purpose to avoid prosecution.
This subsection is general, not tied to any particular crime or circumstance, and serves to
toll any time where a criminal has taken action to avoid prosecution. The tolling is clearly
written and should be uriderstood to be general and applicable to any and all prosecutions
against an accused who purposely avoids prosecution.
The 1973 Legislative Committee Notes to the law attest to the applicability of the
statute to any and all prosecutions where a felon acts to "purposely avoid prosecution."
Those notes read:
2 Subsection (G) was amended in 1998 so that it now reflects gender-neutral language. It
now reads:
(G) The period of limitation shall not run during any time when the accused
purposely avoids prosecution. Proof that the accused departed this state or
concealed the accused's identity or whereabouts is prima-facie evidence of the
accused's purpose to avoid prosecution.
6
The sectioti gives various special rules for determining when the time limits
begin to run and for tolling the time limits, so that the basic thrust of the
measure is to discourage inefficient or dilatory law enforcement rather
than to give offenders the chance to avoid criminal responsibility for
their conduct. Former law placed no limitation on the prosecution of
felonies, and placed a three-year limitation on the prosecution of
misdemeanors generally. Some statutes also carried special limitations. The
rationale for limiting criminal prosecutions is that they should be based on
reasonably fresh, and therefore more trustworthy evidertce. In the case of
aggravated murder or murder, the grave nature of the offense overrides the
general policy behind limiting criminal prosecutions, and therefore no
limitation is prrovided.
(Emphasis added.)
In State v. Swartz, 88 Ohio St.3d 131,132-33, 723 N.E.2d 1084,1086, 2000-Ohio-277,
this court addressed the purpose of the statute of limitations, stating, "This court
reaffirmed these principles recently when we held that 'the intent of R.C. 2901.13 is to
discourage inefficient or dilatory law enforcement rather than to give offenders the
chance to avoid criminal responsibility for their conduct.' State v. Climaco, Climaco,
Seminatore, Lejkowitz & Garofoli Co., L.P.A. (1999), 85 Ohio St.3d 582, 586, 709 N.E.2d 1192,
1195, citing State v. Hens•!ey (1991), 59 Ohio St.3d 136, 138, 571 N.E.2d 711, 714. As the
purpose for the statute's enactment is to deter dilatory prosecution, it is apparent that an
accused's actions in evading prosecution toll the time to bring prosecution.s
The federal law provides a general tolling provision to its statute of limitations for
criminals who flee from justice. 18 U.S.C. § 3290 reads, "[n]o statute of limitations shall
extend to any person fleeing from justice." The federal law is unqualified and similar in its
simplicity to Ohio's tolling provision at issue in this appeal. The federal law tolls time for
any prosecution upon a fugitive from justice. U. S. v. Gonsalves, C.A.9 (Cal.) 1982, 675 F.2d
3 Similarly, the statute governing the time in which an accused is to be brought to trial is
tolled by a defendant's actions. See, R.C. 2945.72.
7
1050 In Gonsalves, (9th. Cir. 1982), the court found that, 18 U.S.C. § 3290, "***[R]eflects a
congressional intent to deny a person fleeing from justice in any federal jurisdiction the
protection of the criminal limitations statute on all federal offenses." 672 F.2d 1050, 1053
(Citing, King v. United States, 144 F.2d 729, 731 (8th Cir. 1944), cert. denied, 324 U.S. 854,
65 S.Ct. 711, 89 L.Ed. 1413 (1945); Brouse v. United States, 68 F.2d 294, 296 (1st Cir. 1933).
The Gonsalves court made this determination after noting that the defendant's interest to
avoid defending offenses "committed in the distant past" is outweighed by the
government's interest in investigating and prosecuting the crimes committed. 672 F.2d at
105 2.
It does not matter whether the accused is avoiding prosecution for one particular
offense or another; the law inherently recognizes the unfairness of providing a criminal the
means to evade prosecution. And the legislative notes to the law lead to the conclusion
that the lavv's intent was not to create a pothole in the road to justice as the appellate court
has now done. Because of this, the State asks this Court to adopt as law its Proposition of
Law that reads:
The statute of limitations upon criminal offenses is tolled pursuant to former
R.C. §2901.13(G) when the accused purposely avoids prosecution for an
offense.
This proposition is supported by the plain language of the statute and accomplishes
the purposes of the legislature. No verbiage or interpretation of the language of the statute
needs to be added as the appellate court did in this matter. This Court has long held that
adding language by interpretation should not be taken. In Slingluff v. Weaver ( 1902), 66
Ohio St. 621, 64 N.E. 574, this Court held, "*** [T]he intent of the lawmakers is to be sought
first of all in the language employed, and if the words be free from ambiguity and doubt,
8
and express plainly, clearly, and distinctly the sense of the lawmaking body, there is no
occasion to resort to other means of interpretation." Id., at syllabus para. 2. See, also
Tomasik v. Tomasik, 111 Ohio St.3d 481, 483, 857 N.E.2d 127, 129, 2006-Ohio-6109, at ¶13.
This Court recently reaffirmed this tenet of statutory construction in State v. Robinson, Slip
Opinion No. 2009-Ohio-5937, at 118.
In this matter, the tolling provision in R.C. 2901.13(G) is clear and unambiguous
where it reads, "The period of limitation shall not run during any time when the accused
purposely avoids prosecution." It is not qualified with an article or words that would limit
the tolling to only crimes from which an accused avoids prosecution. This Court should
not add an element of knowledge restricting a criminal's knowledge to a specific
prosecution as the appellate court did. The statute of limitations for a defendant's crimes
is tolled when an accused "purposely avoids prosecution." The law is simply written. It is
not ambiguous. And it does not tie the tolling of the statute to the accused's knowledge that
rnore than one of his crimes had been detected. As stated by Judge Blackmon of the Eighth
District Court of Appeals, "I believe prosecution means prosecution ***. If a person is
avoiding prosecution for a crime, it is his 'bad luck' that, wile avoiding the prosecution, an
undiscovered crime surfaces."
Appellee Fled Ohio to avoid prosecution for child molestation. When he was found
18 years later, John Doe came forward with allegations of molestation, allegations of sexual
abuse similar to those his sister had come forward with when they both were children.
1'hose allegations are not subject to proof and Appellee is not subject to prosecution
because he fled prosecution in Ohio because the tolling provision has been judicially
amended. The indictments regarding the crimes committed against John Doe remain
9
untried, and Appellee, who was a fugitive from justice for 18 years, will not have to answer
that indictment. This aberration of justice has resulted directly from the lower courts'
misreading the plain language of the tolling provision in R.C. 2903.13(G). Not only does
Appellee remain free from prosecution upon the most heinous of acts alleged by John Doe,
the courts in Cuyahoga County provided Appellee and others like him the ability to flee the
State of where only orre of several crimes they have committed have been discovered. Once
they flee the jurisdiction to evade prosecution, those criminals will avoid prosecution for all
other crimes that remained undiscovered on the date they fled. And when they remain at
large for the applicable statute of limitations they will, in direct apposition to the intent of
the General Assembly, avoid responsibility for their criminal actions.
The opinion in this case is premised upon one of two conflicting prior appellate
opinions from that court. In 1985, Eighth District Court of Appeals determined what
actions constituted flight from prosecution sufficient to toll time under R.C. §2901.13(G).
In State v. Koren (Jan. 24, 1985), Cuyahoga App. No. 48461, unreported, that defendant was
iridicted and then convicted for involuntary manslaughter and robbery six years and six
days after the crimes had occurred. If the statute of limitations was not tolled, that case
would be barred.'Che appellate court noted that after the robbery and shooting that:
*** [TIhere was adequate evidence for the trial court to rule that limitations
had not expired here. Defendant's friend testified that the defendant
requested and obtained money to leave ttre state on the morning of the
offense. The defendant testified that three weeks after the offense he went to
Colorado for a month. He also acknowledged a trip to Illinois in October,
1976, and his incarceration in Illinois for more than two years from February
15, 1980, until his extradition to Ohio after this indictment.
Additionally, the defendant admitted using two different alias names during
his encounters with police while they were investigating other incidents. Ile
rnaintained no regular address. His mother testified that he lived in
Mansfield, Ohio and Illinois after 1976. Collectively, this evidence supported
10
the trial court's implicit finding that the defendant purposely avoided
prosecution for more than six months, so that limitations had not expired
when the grand jury indicted him.
In this case, the trial court granted the motion to dismiss because it determined that
Appellee did not have actua] notice of pending charges for crimes against John Doe. 'I'he
appellate courts had not required such knowledge because the tolling provision does not
require knowledge, nor should such a requirement be attached.
There can be no question that Appellee fled the State of Ohio to avoid prosecution
for child molestation. At the time of his crimes, John and Jane Doe lived in the same home.
After Jane Doe made allegations of abuse, a police investigation was initiated as well as a
Children and Family Services investigation. After Appellee contacted a lawyer, he made
arrangements to leave the jurisdiction and hide from the charges and the investigation.
These actions tolled the statute of limitations for the crimes as to Jane Doe; but by what
rationale can they not also toll the statute of limitations for the now alleged crimes by John
Doe?
The longstanding law in Ohio has been to read the tolling provision as requiring
flight from prosecution; not flight From a specific prosecution. See, Koren, supra. In this
matter, the majority opinion determined the tolling provision in 2901.13(G) requires that
the accused have notice of pending or actual charges. But that holding is inapposite to the
plain reading of the statute and to at least one other jurisdiction in Ohio. In State v. Bixler,
Putnam App. No. 12-03-18, 2004-Ohio-2468, that defendant was located ten years after the
crime had occurred through a DNA database search. Id., at ¶ 2. He was not identified at the
tirne he fled the jurisdiction. In resolving whether counsel was ineffective by withdrawing a
motion to dismiss the indictment based upon the statute of limitations, the court wrote:
11
The evidence is clear that Bixler had left the jurisdiction of the State of Ohio
before the statute of lhnitations had expired. The statute specifically provides
for a tolling of the statute of limitations if the defendant willfully leaves the
jurisdiction to avoid prosecution. R.C. 2901,13(G). The fact that the
defendant absented himself from the state is prima facie evidence of the
intent to avoid prosecution. Id. Given the evidence that Bixler left the State of
Ohio before his incarceration in Kansas in 1994, the trial court reasonably
could have concluded that Bixler left the State of Ohio to avoid prosecution.
Thus, trial counsel was not deficient for arranging a plea agreement with the
State and withdrawing the motion to dismiss.
Id.,at¶7.
This rationale is clear: the tolling of the statute of limitation operates where the
defendant has fled to avoid prosecution, not a specific prosecution. It was reiterated by
Judge James J. Sweeney in his dissent wherein he wrote:
In my opinion, R.C. 2901.13(G) has a broad meaning and tolls the statute of
limitations for prosecution in general. R.C. 2901.13(G) states that the statute
of limitations "shall not run during any time when the accused purposely
avoids prosecution." Nothing in the plain reading of this statute refers to a
specific prosecutioti or "the" prosecution. In essence, by fleeing from justice,
the defendant waived his right to assert the statute-of-limitations defense for
crimes he could still, otherwise, be prosecuted for.
In dismissing the indictment in this case, the trial court, and the majority opinion
relied upon the other Eighth District Court of Appeals opinion. In State v. McGraw (Jun. 16,
1994) Cuyahoga App. No. 65202, unreported, that defendant left the jurisdiction of Ohio
after being cited for operating a motor vehicle while under the influence in a municipal
court. He later bragged to the media that he had avoided prosecution for 10 years. Only
after his return did his daughter bring forth allegations of sexual abuse. In dismissing the
indictment and over dissent, the court found that the tolling provision statute under R.C.
§2901.13(G) operated only if the flight was shown to be for the charges in that case, not a
flight to avoid prosecution as written in the law. In interpreting the statute in McGraw,
12
Judge Blackmon wrote in dissent that such requirement of a nexus to the crimes charged
and the accused's intent is beyond the plain language of the statute and is not required:
The reality is that R.C. 2901.13(G) does not say what prosecution the accused
is avoiding. It merely says "avoiding prosecution." The trial court and the
majority both concluded that the clear import of the statute was the
prosecution for rape not the DWI. Since he did not know about the rape, he
could not have been avoiding it. Of course, I believe that prosecution means
prosecution, which answers the second question in this dissent. If a person is
avoiding prosecution for a crime, it is his "bad luck" that, while he is avoiding
the prosecution, an undiscovered crime surfaces.
Id.
The trial court determined, and a majority of the appellate panel agreed, that Appellee
would have to have actual notice of charges brought by John Doe in order for the statute of
limitations to be tolled. This holding is not just limited to situations where a victim fails to
come forward, as John Doe did. It would have precluded prosecution in this case even had
John Doe come forward the day after Appellee fled to avoid prosecution.
Because the appellate court grafted an element of knowledge onto a plain,
unambiguous statute it erred in its interpretation of the law. Further, it's holding that the
statute of liniitations is not tolled for any prosecution when a defendant, such as Appellee,
purposely avoids prosecution. The law requires no nexus between flight and actual
knowledge of investigation or chargcs and this Court should so hold and reverse the
decision of the appellate court affirming the trial court's dismissal of the indictment.
13
CONCLUSION
For the foregoing reasons, the State asks that this Court accept jurisdiction in this
matter, adopt the State's proposition of law, reverse the trial court's dismissal of the
charges in the indictment, and remand this cause so that Bess can stand trial upon the
charges brought by John Doe in this case.
Respectfully submitted,
WILLIAM D. MASON
CUYAHOGA COUNTY PROSECUTOR
BY:
T.t'ALLAN RI?GAS (0067336)
Assistant ProseciTtia3g Attorney
1200 Ontario 3,treoi, 91h Floor
Cleveland, Ohio 44113
216.443.7800
SERVICE
A copy of the foregoing Merit Brief of Appellant has been mailed this 10th day of
December, 2009, to David L. Doughten, 4403 St. Clair Avenue, Cleveland, Ohio 44103.
✓Assistant ProsecuYing
14
IN THE SUPREME COURT OF OHIO
APPEAL FROM
THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO
NO. 91429
STATE OF OHIO,
Plaintiff-Appellant
-vsLARRY BESS
Defendant-Appellee
NOTICE OF APPEAL TO THE SUPREME COURT OF OHIO
Counsel for Plaintiff-Appellant
WILLIAM D. MASON
Cuyahoga County Prosecutor
T. ALLAN REGAS (0067336)
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
(216) 443-7800
Counsel for Defendant-Appellee Defendant-Appellee
DAVID DOUGHTEN LARRY BESS A544857
4403 St. Clair Avenue Hocking Correctional Facility
Cleveland, Ohio 44103 P.O. Box 59, 16759 Snake Hollow Road
Nelsonville, Ohio 45764
OFFICE OF THE OHIO PUBLIC DEFENDER
250 East Broad Street, 14th Floor
Columbus, Ohio 43215
I
NO.
IN THE SUPREME COURT OF OHIO
APPEAL FROM
THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO
NO. 91429
STATE OF OHIO,
Plaintiff-Appellant
-vsLARRY BESS
Defendant-Appellee
NOTICE OF APPEAL TO THF SUPREME COURT OF OHIO
Now comes the State of Ohio and hereby gives Notice of Appeal to the Supreme
Court of Ohio from a judgment and final order of the Court of Appeals for Cuyahoga
County, Ohio, Eighth Judicial District, journalized May 26, 2009, which affirmed the
decision of the trial court.
Said cause did not originate in the Court of Appeals and involves a felony.
Respectfully submitted,
WILLIAM D. MASON
CUYAHOGA COUNTY PROSECUTOR
By:
ALLAN REGASke967336}
Assistant Prosecuting Attorney
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
216.443.7800
SERVICE
A copy of the foregoing Notice of Appeal has been mailed this 29th day of June
2009, to David L. Doughten, 4403 St. Clair Avenue, Cleveland, Ohio 44103 and to Larry
Bess, A544857, Hocking Correctional Facility, P.O. Box 59, 16759 Snake Hollow Road,
Nelsonville, Ohio 45764 and to the Office of the Ohio Public Defender, 250 East Broad
Street, 14th Floor, Columbus, Ohio 43215.
ss ant Prosecuting, rn
^^--
13
MAY 2 6 7ltlly
Cnourt nf Aypettls uf 04in
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 91429
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
LARRY BESS
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-495093
BEFORE: Boyle, J., Dyke, P.J., and Sweeney, J.
RELEASED: May 14, 2009
JOURNALIZED: MAY
CA08091429 37801363
1 1 1 Hil 1 1 1 1 1 1 1 1 1 1 1 1 1
^l;0 6 8 2 200 420 `^ ^^
-i-
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
John R. Kosko, Assistant
T. Allan Regas, Assistant
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
David L. Doughten
FILED AND JOURNALIZED
PER APP. R. 22(E)
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
MAY 2 6 2009
4 AI.D E. FUERST
CLERK Of T E tl^IT Ok APPERIS
8Y - k/^DER
ANNOUNCEESE^tT OF DECISION
PER APP. R. 22fk;,. Z(D)AND 26fA)
RE ^A+ ijr^ ,'
.Ja
AY 1 4 2009
ERST
T OF APPEALS
CA08091429 57520000
DEF
1111111111111111111111111111I1111II11I111I ^ ^ IN
N.B. This entry is an announcement of the court's decision. See App.].Z. 22(B) and
26(A); Loc.App.R. 22, This decision will be journalized and will become the judgment
and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration
with supporting brief, per App.R. 26(A), is filed within ten (10) days of the
announcement of the court's decision. The time period for review by the Supreme
Court of Ohio shall begin to run upon the journalization of this court's announcement
of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
NOW 6 8 2 !R.OO 42 1
MARY J. BOYLE, J.:
Plaintiff-appellant, the State of Ohio, appeals from the trial court's
judgment granting defendant-appellee, Larry Bess's motion to dismiss the
indictment against him because the applicable statute of limitations had
expired. For the reasons that follow, we affirm.
Bess was indicted in November 1989 in Case No. CR-243403 on ten counts
of sex offenses, including rape and gross sexual imposition. These charges arose
from allegations made by Bess's stepdaughter, L.O. (d.o.b. 8-23-76), in February
1.989. Sometime before he was indicted, around October 1989, Bess fled Ohio,
an.d a capias was issued for his arrest. He concealed his identity and his
whereabouts until March 2007, when he was found in Georgia under the name
of Norman Weatherby. He was arrested and extradited to Ohio to be prosecuted
for sexual abuse against L.O.
OnMarch 22, 2007, Bess's stepson and L.O.'s brother, A.O. (d.o.b. 3-15-73),
told police that he had also been sexually abused by Bess from the time he was
8 or 9 years old until he was 16 years old. A.O. turned 18 on March 15, 1991.
Based on A.O.'s allegations, Bess was indicted in Case No. CR-495093 (the
underlying case) on six counts of rape, one count each of attempted rape and
complicity in the commission of rape, and two counts of gross sexual imposition.
VID 6 ^2 P,00 422 1 U
-2Bess filed a motion to dismiss botli indictments.i The indictment at issue
in this case involves A.O., Case No. CR-495093. Bess argued that under R.C.
2901.13, the six-year statute of limitations expired on March 15, 1997, which
was six years after A.O. turned 18. The following evidence was presented at the
hearing on his motion to dismiss the indictment.
Facts Presented at Motion Hearim^
Theresa Ogden-Bess married Bess in 1986. In February 1989, her
daughter, L.O., told a school counselor that Bess had been sexually abusing her
for years. She recalled talking to the police and children services about the
case.
Ogden-Bess explained that between February and October 1989, Bess
would disappear for long periods of time. He told her that he was planning to
leave the area and change his identity because he did not want to go to jail. She
said that Bess told her that he was trying to establish a paper trail, "doing
things like registering to vote under various names, anything with a name on it
'The trial court denied Bess's motion to dismiss the indictment involving L.O.,
Case No. CR-243403. Bess was convicted in that case of three counts of rape and five
counts of gross sexual imposition. He received an aggregate sentence of life in prison.
He appealed his conviction, which we affirmed. See State v. Bess, 8th Dist. No. 91560,
2009-Ohio-2032.
ti2I0 68 2 000, 4 23 v
-3that, you know, he might be able to use." He also searched church records to
find the identity of a child who had died.
Ogden-Bess testified that she did not know where Bess went when he
disappeared. She knew that he went to West Virginia at one point. She also
remembered that he suggested that the whole family go to the Philippines
because there was no extradition to the United States.
She further recalled that Bess was not living with her at the tinie the
indictment came in the mail. They had sold their house in North Royalton
because he wanted his share of the money. He purchased a van, loaded it up,
and left town.
At first, she would hear from him periodically, every couple of months. He
would call and send cards. But she said that she had no idea where he was or
what name he was using. She recalled that he may have lived in Texas at one
time. She also recalled having a phone number at one time, but she could no
longer remember what it was. She said that she never saw him again after he
left.
Ogden-Bess explained that she never told the police that Bess was
planning to leave the area. When asked why, she replied, "[h]e liadn't been
indicted" and "[n.]obody asked." She further stated that she never told the police
when he called her over the years.
F B L - 0 68 2 A 4 2 4..^ w
-4She agreed on cross-examination that the reason she did not try to stop
Bess is because she did not believe that he did anything to her daughter. She
also admitted that she knew where Bess was living when he was in West
Virginia because she went to see him there twice. She also saw him in Texas on
another occasion. She never told the police that she saw him or that she knew
where he was. She said the police never asked her. Later, she came to believe
her daughter about the abuse allegations. She said that "complete contact was
broken off' approximately "ten years ago."
A.O. testified that Bess lived with his family from approximately 1983 to
1989. He recalled that at one point, Bess had him "sign a name on a Bible" in
an attempt to make it look like it had been "passed down to him from a fictitious
family." He explained that after they moved to Parma, Bess came to their house
one time to get the money from the sale of their North Royalton home. After
that, A.O. said that he never saw Bess again.
After Bess was arrested in Georgia in 2007, A.O. came forward for the first
time with allegations of abuse that occurred from 1982 to 1989. He stated that
he had never told anyone prior to March 2007 - not the police, doctors, or social
services - because he was afraid to tell anyone. After that, "there was no reason
to, other than to maybe upset my mother more." When police had Bess in
&'0682 1R0O425 V q
-5custody, however, A.O. said he came forward because something could be done
about it.
On cross-examination, A.O. recalled talking to Detective Napier in 1989
about his sister. A.O. admitted that he told Detective Napier that his sister was
lying and that he did not have any knowledge about the alleged abuse.
Detective David Sword testified that he took over th.e case after Detective
Napier retired. He said that he talked to L.O., and she told him that her brother
and mother were still in the area. The first time he talked to A.O. in March
2007, Detective Sword asked him if there had ever been any incidents of abuse
against him, and he replied "no." But Detective Sword said that A.O. became
"kind of emotional" when he said no. The next day, A.O. called Detective Sword
and told him that he needed to meet with him. That is when A.O. first made
sexua.l abuse allegations against Bess.
On cross-examination, Detective Sword stated that he could not find
anything in the original file that indicated that there were any allegations of
abuse regarding A.O.
At the close of the hearing, the trial court found that no evidence was
presented establishing that Bess avoided prosecution relating to A.O. and that
there was "no indication that he lznew he was going to be indicted or charged in
this case." The trial court further found that the testimony of Bess's ex-wife
V^L,^J 6€3 2 'P<.o 0 4 2 6 ^ ^^
-6proved that he left town to avoid prosecution for the case involving L.O. The
trial court then granted Bess's motion to dismiss the indictment in Case No. CR495093.
It is from this judgment that the State appeals, raising one assignment of
error for our review:
"The trial court erred by granting appellee's motion to dismiss the
indictment on the grounds that the statute of limitations had run."
Standard of Review on.Motion to Dismiss an Indictment
The State argues that we should review the trial court's granting of Bess's
motion to dismiss the indictment under a de novo review. We disagree.
"The Supreme Court of Ohio has explained that `any motion, however
labeled, which, if granted, restricts the state in the presentation of certain
evidence and, thereby, renders the state's proof with respect to the pending
charge so weak in its entirety that any reasonable possibility of effective
prosecution has been destroyed, is, in effect, a motion to suppress. The granting
of such order is a final order and may be appealed pursuant to R.C. 2945.67 and
Crim.R. 12(J)."'
State v. Putich, 8th Dist. No. 89005, 2008-Ohio-681, 4,J13,
quoting State v. Davidson (1.985), 17 Ohio St.3d 132, syllabus (in Putich,
defendant filed a motion to dismiss the complaint against him). See, also, State
v. Davis, 11th Dist. No. 2008-L-021, 2008-Ohio-6991 (citing Putich's standard of
q0682 P00427
-7review as the "standard of review for motion to dismiss indictment"); State v.
Bewley, 9th Dist. No. 23693, 2007-Ohio-7026.2
A motion to suppress presents a mixed question of law and fact. State v.
Burnside, 1.00 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. "When considering a motion
to suppress, the trial court assumes the role of trier of fact and is therefore in the
best position to resolve factual questions and evaluate the credibility of
witnesses. Consequently, an appellate court must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Accepting
these facts as true, the appellate court must then independently determine,
without deference to the conclusion of the trial court, whether the facts satisfy
the applicable legal standard." (Internal citations omitted.) Id.
In addition, we review statute of limitations issues similarly. "[O]ur
review of statute of limitations issues involves a mixed question of law and fact.
Therefore, we accord due deference to a trial court's findings of fact if supported
by competent, credible evidence, but determine independently if the trial court
ZWe are aware of this court's decision where we only applied an abuse-ofdiscretion standard when reviewing a trial court's decision to dismiss an indictment.
See State v. tVarfield, 8th Dist. No. 86055, 2006-Ohio-935. That case, however, dealt
with the issue of whether the "trial court may use the most severe sanction against the
State for its failure to comply with discovery." Id. at ¶8. That is not the case here,
where the trial court held an evidentiary hearing, observed witnesses testify, made
findings of fact, and applied those findings to the law on statute of limitations.
RAs82 RG0428
-8correctly applied the law to the facts of the case." State v. Stamper, 4th Dist. No.
05CA21, 2006-Ohio-722, 130.
Statute of Limitations for Felonies
At the outset, we note that the State bears the burden of proving that the
offense was committed within the appropriate statute of limitations.
State v.
Climaco, Climaco, Seminatore, Lefhowitz & Garofoli Co., L.P.A., 85 Ohio St.3d
582, 586, 1999-Ohio-408, citing State u. Young (1981), 2 Ohio App.3d 155.
Former R.C. 2901.13(A) sets forth the applicable statute of limitations in
this case.3 It provided:
"Except as otherwise provided in this section, a prosecution is barred
unless it is commenced within the following periods after an offense is
committed:
"(1) For a felony other than aggravated murder or murder, six years."
The State concedes that "the delay in the reporting by [A.O.] would be
beyond then applicable 6-year statute of limitations" had Bess not fled from the
jurisdiction to avoid prosecution. The State argues that the statute of
limitations was tolled by R.C. 2901.13(G), which at the time of his alleged crimes
stated:
'3R.C. 2901.13 was amended in 1999; the applicable statute of limitations is now
20 years. See H.B. 49.
0682 fiG0429 0
17
-9-
"The period of limitation shall not run during any time when the accused
purposely avoids prosecution. Proof that the accused absented himself from this
state or concealed his identity or whereabouts is prima-facie evidence of his
purpose to avoid prosecution."
The narrow question then that is at the crux of this appeal is whether the
phrase "purposely avoids prosecution" means avoiding prosecution for the
instant offense or whether it could apply when the offender avoids prosecution
for a different offense. This court has already answered this exact question in
State v. McGraw (June 16, 1994), 8th Dist, No. 65202.
State v. McGraw
The State maintains that the trial court erred when it relied on this court's
decision in State v. McGraw (June 16, 1994), 8th Dist. No. 65202. The State
urges this panel to overrule the majority opinion issued by a different panel in
McGraw and adopt the dissenting opinion. We decline, however, to do so. As the
Supreme Court of Ohio stated in In re J.J., l l l Ohio St.3d 205, 2006-Ohio-5484,
"conflicting rulings on th.e same legal issue create confusion for lawyers and
litigants and do not promote public confidence in the judiciary." Id. at ¶ 18.
Therefore, we find the trial court's reliance on McGraw to be proper since it is
directly on point and is still good law.
000682 ^60430 ^ I^
-10In McGraw, the defendant had been charged for sex offenses against his
stepdaughter, which were alleged to have occurred more than 12 years prior to
the indictment. The defendant had moved out of the family's home sometime in
1980. In May 1981, the defendant fled Ohio after he was charged with driving
while intoxicated ("DWI"). In March 1992, the victim saw the defendant's
picture on the front page of the Cleveland Plain Dealer and disclosed her abuse
to the police. She was 29 years old at the time, and she had never suppressed
memories of the abuse.
The lower court in McGraw granted the defendant's motion to dismiss the
indictment, finding that "the flight or concealment must be from prosecution of
the instant sexual offenses." The lower court in McGraw further explained:
"The Court finds that had there been any testimony whatsoever from the
victim that a threat with regard to prosecution on sexual abuse charges, if that
had been issued at any time to this victim during that eleven-year period, the
Court would find that the defendant was purposely avoiding prosecution for the
instant offenses. But, based upon the law and the reading of the statute, this
Court finds that the avoiding prosecution language in the tolling section applies
to avoiding the prosecution for the DWI herein."
Upholding the lower court's decision, this court reasoned:
810 6 8 2 PoO 0 431
-11."The entire text of R.C. 2901.13 suggests that paragraph (G) read in pari
materia means the instant prosecution not one for a different crime. There is
nothing in the statute to suggest that flight or concealment from some other
prosecution operates to toll the statute for the instant prosecution. Criminal
statutes must be strictly construed against the State and liberally construed in
favor of the accused. R.C. 2901.04(A). We find the trial court did not err in so
construing the statute."
The State argues that McGraw is distinguishable because the crimes here
"contained a commonality in time, location, and identity." The State maintains
that Bess knew that he was going to be indicted for abuse against L.O.; that he
did not know if A.O. had disclosed the abuse against him; and that Bess knew
that childr.en services had been involved. We decline, however, to extend the
statute as the State proposes.
The State further claims that we should follow our decision in State v.
Koren (Jan. 24, 1985), 8th Dist. No. 48461, where this court held that actual
notice of prosecution under R.C. 2901.13(G) was not necessary. Although we
agree that Koren stands for that proposition, it does not apply to the case sub
judice.
The evidence in Koren established that the defendant robbed a
convenience store and killed a clerk who was working there. Immediately after,
10 6 8 2 ^B 0 4 3 2 1,;S' ^ Le
-12the defendant called a friend, confessed to the crimes, and asked the friend if he
could borrow money to leave the state. He then fled the state. Thus, in Koren,
the defendant fled to avoid the same prosecution he was indicted for - he just
fled prior to being indicted.
The same facts were actually present in Bess's other case (Case No. CR243403) with respect to the abuse against L.O. Bess was not actually charged
for allegations made by L.O. until November 1989. But the facts at the hearing
on the motion to dismiss both indictments established that Bess fled prior to
actually being charged and, thus, he fled without actual notice of the charges.
Thus, the trial court properly denied Bess's motion to dismiss the indictment
with respect to Case No. CR-243403 because, unlike here, in that case Bess fled
to avoid prosecution on those charges, i.e., the same offense in that case.
Accordingly, we find that McGraw and Koren are not in conflict with each
other. We further find Koren to be inapplicable to facts in the present appeal.
In Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., supra,
at 586, the Ohio Supreme Court stated:
"The primary purpose of a criminal statute of limitations is to limit
exposure to prosecution to a certain fixed period of time following the occurrence
of those acts the General Assembly has decided to punish by criminal sanctions.
Toussie u. United States (1970), 397 U.S. 112, 114-115. This `limitation is
682 P00433
("7
-13designed to protect individuals from having to defend themselves against
charges when the basic facts may have become obscured by the passage of time
and to minimize the danger of official punishment because of acts in the
far-distant past.' Id. Additionally, such a time limit has the salutary effect of
encouraging law enforcement officials to promptly investigate suspected criminal
activity. Id. We recognized these purposes in [State u. Hensley (1991), 59 Ohio
St.3d 136] at 138, where we found that the intent of R.C. 2901.13 is to
discourage inefficient or dilatory law enforcement rather than to give offenders
the chance to avoid criminal responsibility for their conduct. We stated, "`The
rationale for limiting criminal prosecutions is that they should be based on
reasonably fresh, and therefore more trustworthy evidence,"' quoting the Ohio
Legislative Service Commission Comment to R.C. 2901.13."
Here, the trial court found that Bess fled Ohio to avoid prosecution for the
allegations made by L.O. after she told her school counselor. The trial court
further found that no evidence was presented that established that Bess avoided
prosecution relating to A.O., nor was there any evidence that he even knew he
was going• to'pe indicted or charged regarding A.O. Further, additional facts
reveal that A.O. never told anyone about the alleged abuse until March 2007.
In fact, in 1989, A.O. told the police that his sister was lying about Bess abusing
her.
,v%0682 a0434
-14Accordingly, we find that the trial court's findings were supported by
competent, credible evidence and thus are afforded due deference. "It is well
settled that `[t]he trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony."' State v. Amburgey (1987), 33 Ohio
St.3d 115, 117, quoting Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77,
80. That is why we defer to the trial court's discretion in these matters. Id.
Thus, we conclude that the trial court properly applied the facts to the law
when it granted Bess's motion to dismiss the indictment against him involving
A.O., since it found that Bess fled Ohio and concealed his identity to avoid being
prosecuted for alleged abuse against L.O., not A.O.
While we recognize that child sexual abuse victims internalize abuse and
are frequently inhibited from speaking freely about it, we nonetheless must
adhere to the law. Statute of limitations "strike a balance between the need for
a time limit and the need to ensure that those who abuse children do not escape
criminal responsibility." Climaco, Climaco, Serrainatore, Lefhowitz & Garofoli
Co., L.P.A., supra, at 588. In the case sub judice, the statute of limitations
expired on March 15, 1997.
Accordingly, we overrule the State's sole assignment of error.
Judgment affirmed.
'AA 'b 8 2 fu0 435 '^
-15It is ordered that appellee recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure,
ANN DYKE, P.J., CONCURS IN JUDGMENT ONLY;
JAMES J. SWEENEY, J., DISSENTS WITH SEPARATE OPINION
JAMES J. SWEENEY, J., DISSENTING:
I respectfully dissent from the majority opinion. Rather, I would reverse
the trial court's judgment granting the defendant's motion to dismiss. In my
opinion, R.C. 2901.13(G) has a broad meaning, and tolls the statute of
limitations for prosecution in general. R.C. 2901.1.3(G) states that the statute
of limitations "shall not run during any time when the accused purposely avoids
prosecution." Nothing in the plain reading of this statute refers to a specific
prosecution, or "the" prosecution. In essence, by fleeing from justice, the
Y110682 PE0436. 2D
-16defendant waived his right to assert the statute of limitations defense for crimes
he could still, otherwise, be prosecuted for.
This view finds support in State v. Roberts, Cuyahoga App. No. 84949,
2005-Ohio-2615. In Roberts, the defendant was convicted of a felony in 1978.
Sometime after this, she changed her name and identity, going so far as to falsify
fingerprints. In 1996, the defendant was hired as a teacher in the Cleveland
public school system. In 2002, the Cleveland School Board discovered
defendant's fingerprint discrepancy. On December 8, 2003, the defendant was
indicted for illegal use of food stamps, theft, and tampering with records,
stemming from actions she took under her new identity against the Department
of Employment and Family Services between 1990 and 1.996. The statute of
limitations on these charges had run.
The defendant filed a motion to dismiss pursuant to R.C. 2901.13(G). The
trial court denied this motion and we affirmed, holding that the defendant's
actions of concealing her identity are "proof that she purposely avoided
prosecution for her crimes." Id. at paragrapli 14. See, also, State v. McGracu
(June 16, 1994), Cuyahoga App. No. 65202 (J. Blackmon, dissenting) (concluding
that "I believe that prosecution means prosecution ***. If a person is avoiding
prosecution for a crime, it is his `bad luck' that, wliile avoiding the prosecution,
an undiscovered crime surfaces"); State v. Bixler, Putman App. No. 12-08-18,
VM 68 2 F00 43 7 ^
-172004-Ohio-2468 ( noting that a defendant who flees the state of Ohio before the
statute of limitations has expired for a crime is avoiding prosecution, despite
being indicted more than ten years after the date the offense was committed).
Compare R.C. 2901.13(G) with 18 U.S.C. 3290, the federal criminal statute of
limitations, which is tolled for any crime against the United States, when the
defendant is a "fugitive from justice."
nA368z 060438
2901.13 Limitation of criminal prosecutions
T
(A) Except as otherwise provided in this scetion. a prosecution shall be barred unless ttis commenced within the
following periods after an offense is committed:
(I) for a falony other than aggravated murdor or murdcr,
six years;
(2) for a misdemeanor other than a minor misdcmeanor,
two years;
(3) for a minor misdemeanor. six months.
(B) If the period of limitation provided in division (Al of
this section has expired, prosecution shall be eommenced
for an offense of which an element is fraud or breach of a
fiduciary duty, within one year after discovery of the
offense aither by an aggrieved person. or by his tegal rcpresentative who is not himself a party to the oftense.
(C) if the period of limitation provided in division (A)
of this section has expired- prosecution shall be commenced
for an offense involving misconduct in office by a public
servant as defined in seaion 2921.01 of the Revised Code.
at any time while the accused remains a public servam. or
within two years thereafter.
(D) An offense is committed when every element of the
offense occurs. In the case of an offense of which an element is a continuing course of conduct, the period of limitation does not begin to run until such course of conduct or
the accused's accountability for it terminates. whichever
occurs first.
(E) A prosacutionis commenced on the date an indictment is retumed or an infonnation filed. or on the datc a
lawful arres[ withaut a warrant is made. or on the date a
warrant, summons. citation. or other process is issued.
whichever occurs ftrst. A prosecution is not commenced by
the return of an indictment or the filing of an information
unless reasonable diligence is exercisod to issuc and executc
process on the same. A prosecution is not commenced upon
issuance of a warrant. summons. citation. or other process,
unlcss reasonabie diligence is exercised to execute the same.
(F) The period of limitation shatl not run during any
time when the corpus delicti remains undiscovered.
(G) The period of limitation shall not mn during anv
time when ehe accused purposely avoids prosecution. Proof
that the accused absented himself from this state or concealed his idcntitv or whereabouts is prima-facie evidence
of his purpose to avoid prosecution.
(H) The period of limitation shall not run during any
time a prosecunon against the accused based on the same
eonduct is pending in this state, even though the indictment. information, or process which commenced the prosecution is quashed or the proceedings thereon are set aside
or reversed on appeal.
HtSTORY: 1972 H 511, eff. 1-i-74
Page 2 of 4
WestCaw.
R.C.
§
2901.13
Page
1
Baldwin's Oltio Revised Code Annotated Ctirrentness
Title XXIX. Crimes--Procedure (Refs & Annos)
sW Chapter 2901. General Provisions
KIw Jurisdiction, Venue, and Limitations of Prosecutions
y 2901.13 Limitation of criminal prosecntions
(A)(1) Except as provided in division (A)(2) or (3) of this section or as otherwise provided in this section, a prosecution sltall be baiTed unless it is commenced within the following periods after an offense is cotnmitted:
(a) For a felony, six years;
(b) For a misde neanor other than a minor misdemeanor, two years;
(c) For a minor misdemeanor, six months.
(2)'fhere is no period of limitation for the prosecution of a violation of section 2903.01 or 2903.02 of the Revised Code.
(3) Except as otherwise provided in divisions (B) to (H) of this section, a prosecution of any of the following offenses shall be barred unless it is commenced within twenty years after the offense is cominitted:
(a) A violation of section 2903.03, 2903.04, 2905.01, 2907.02, 2907.03, 2907.04, 2907.05, 2907.21, 2909.02,
2909.22, 2909.23, 2909.24, 2909.26, 2909.27, 2909.28, 2909.29, 2911.01, 2911.02, 2911.11, 2911.12, or
2917.02 of the Revised Code, a violation of section 2903.11 or 2903.12 of the Revised Code if the victim is a
peace officer, a violation of section 2903.13 of the Revised Code that is a felony, or a violation of former section
2907.12 of the Revised Code;
(b) A conspiracy to commit, attempt to commit, or complicity in committing a violation set forth in division
(A)(3)(a) of this section.
(13)(1) Except as otherwise provided in division (B)(2) of this section, if the period of limitation provided in division (A)(t) or (3) of this section has expired, prosecution shall be commenced for an offense of which au element is fraud or breach of a fiducia y duty, witltin oue year after discovery of the offense either by an aggrieved
person, or by the aggrieved person's legal representative who is not a party to the offense.
(2) If the period of limitation provided in division (A)(1) or (3) of this section has expired, prosecution for a vi-
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olation of section 2913.49 of the Revised Code shall be commenced within five years after diseovery of the offense eittter by an aggrieved person or the aggrieved person's legal representative who is not a party to the of- fense.
(C)(l ) If the period of limitation provided in division (A)(1) or (3) of this section has expired, prosecution shall
be commenced for the following offenses during the following specified periods of time:
(a) For an offense involving misconduct in office by a public servant, at any time while the accused remains a
public servant, or witliin two years thereafter;
(b) For an offense by a person who is not a public servant but whose offense is directly related to the misconduct
in office of a public setvant, at any time while that public servant remains a public servant, or within two years
thereafter.
(2) As used in this division:
(a) An "offense is directly related to the misconduct in office of a public servant" includes, but is not lhnited to,
a violation of section 101.71, 101.91, 121.61 or 2921.13, division (F) or (11) of section 102.03, division (A) of
section 2921.02, division (A) or (B) of section 2921.43, or division (F) or (G) of section 3517.13 of the Revised
Code, that is directly related to an offense involving misconduct in office of a pnblic servant.
(b) "Public servant" has the same meaning as in section 2921.01 of the Revised Code.
(D) An offense is connnitted when every element of the offense occurs. In the case of an offense of which an
element is a continuing course of conduct, the period of limitatlon does not begin to run until such course of
conduct or the accused's accountability for it terminates, whichever occurs first.
(E) A prosecution is commenced on the date an indictntent is returned or an information filed, or on the date a
lawful airest without a warrant is made, or on the date a warrant, summons, citation, or other process is issued,
whichever occurs first. A prosecntion is not cotnmenced by theYeturn of an indictment or the filing of an information unless reasonable diligence is exercised to issue and execute process on the same. A prosecution is
not commenced upon issuance of a warrant, summons, citation, or other process, mtless reasonable diligence is
exercised to execute the same.
(G) The period of limitation shall not run during any time when the accused purposely avoids prosecution. Proof
that the accused departed this state or concealed the accused's identity or whereabouts is prima-facie evidenee of
the accused's purpose to avoid prosecution.
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(I-I) The period of limitation shall not run during any time a prosecntion against the accused based on the satne
conduct is pending in this state, even though the indietment, information, or process that commenced the prosecution is quashed or the proceedings on the indictment, infonnation, or process are set aside or reversed on ap- peal.
(I) The petiod of limitation for a violation of any provision of Title XXIX of the Revised Code that involves a
physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect
of a child under eigltteen years of age or of a mentally retarded, developmentally disabled, or physically impaired child under twenty-one years of age shall not begin to run until either of the following occurs:
(1) The victim of the offense reaches the age of majority.
(2) A public children services agency, or a mnnicipal or county peace officer that is not the parent or guardian of
the child, in the county in which the child resides or in which ttte abuse or neglect is occurring or has oecutred
has been notified that abuse or neglect is known, suspected, or believed to have occurred.
(J) As used in this section, "peace offieer" has the same meaning as in section 2935.01 of the Revised Code.
CREDIT(S)
(200813 46, eff. 9-1-08; 2008 S 219, eff. 7-21-08; 2006 S 17, eff. 8-3-06; 2005 S 9, eff. 4-14-06; 1998 H 49, eff.
3-9-99; 1972 H 511, eff. 1-1-74)
Current through 2009 File 9 of the 128th GA (2009-2010), apv. by 12/7/09 and filed with the Secretary of State
by 12/7/09.
Copr. (c) 2009 Thomson Renters
END OF DOCUMENT
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R.C. § 2945.72
Baldwin's Olzio Revised Code Annotated Currentness
'ritle XXIX. Crimes--Procedure (Refs & Annos)
'sw Chapter2945. Trial (Refs & Annos)
W Schedule of Trial and Hearings
y 2945.72 Extension of time for hearing or trial
The titne witliin which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and
trial, may be extended only by the following:
(A) Any period duriug which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against hhn, witlihi or outside the state, by reason of his coufinement in another state, or by reason of the
pendency of extradition proceedings, provided that the prosecution exerciscs reasonable diligence to secure his
availability;
(B) Any period during which the accused is mentally incompetent to stand trial or during whict his meutal competence to stand trial is being determined, or any period during which the accused is physically incapable of
standing trial;
(C) Any period of delay necessitated by the accused's lack of counsel, provided that such delay is not occasioned
by any lack of diligence in providing counsel to an indigent accused upon his request as required by law;
(D) Any period of delay occasioned by the neglect or improper act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made
or instituted by the accused;
(F) Any period of delay necessitated by a removal or change of venue pursuant to law;
(G) Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order
of another court competent to issue such order;
(H) The period of any continuance granted on the accused's own inotion, and the period of any reasonable continuance granted other than upon the accused's own motion;
(I) Any period dLiring which au appeal filed pursuant to section 2945.67 of the Revised Code is pending.
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CREDIT(S)
(1978 H 1168, eff. 11-1-78; 1976 S 368; 1975 H 164; 1972 H 511)
Curreut througli 2009 File 9 of the 128th GA (2009-2010), apv. by 12/7/09 and filed witlt the Secretary of State
by 12/7/09.
Copr. (c) 2009 Thomson Reuters
END OF DOCUMENT
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