State v. Cook , 128 Ohio St. 3d 120 ( 2010 )

[Cite as State v. Cook, 128 Ohio St. 3d 120, 2010-Ohio-6305.]
THE STATE OF OHIO, APPELLEE, v. COOK, APPELLANT.
[Cite as State v. Cook, 128 Ohio St. 3d 120, 2010-Ohio-6305.]
Criminal law — Statutes of limitations — R.C. 2901.13(A)(1)(a), 2901.13(B)(1),
and 2901.13(F) — For a felony offense that contains an element of fraud,
the six-year statute of limitations begins to run only after the corpus delicti
of the offense is discovered — In some circumstances, the state has one
additional year to file charges after the corpus delicti of an offense
involving fraud is discovered — Judgment affirmed.
(No. 2009-2122 — Submitted September 29, 2010 — Decided
December 28, 2010.)
CERTIFIED by the Court of Appeals for Lucas County, No. L-08-1301,
184 Ohio App. 3d 382, 2009-Ohio-4917.
__________________
SYLLABUS OF THE COURT
1. The corpus delicti of a crime is the body or substance of the crime and usually
has two elements: (1) the act itself and (2) the criminal agency of the act.
(State v. Hensley (1991), 59 Ohio St. 3d 136, 138, 571 N.E.2d 711,
approved and followed.)
2. Pursuant to R.C. 2901.13(F), for a felony offense that contains an element of
fraud, the six-year statute of limitations in R.C. 2901.13(A)(1)(a) begins
to run only after the corpus delicti of that offense is discovered.
3. When a person who is aggrieved by a crime that includes an element of fraud
or breach of a fiduciary duty discovers the corpus delicti of that offense,
R.C. 2901.13(B)(1) provides the state one additional year within which to
file charges from the date that the aggrieved party discovers the corpus
delicti of the offense.
SUPREME COURT OF OHIO
__________________
LUNDBERG STRATTON, J.
I. Introduction
{¶ 1} The instant case involves a felony offense that includes an element
of fraud where the corpus delicti of the offense was not discovered until
approximately three years after the offense was committed. There are two
questions for our review. The first is whether R.C. 2901.13(F) tolls the criminal
statute of limitations for such an offense while the corpus delicti remains
undiscovered. The second is whether R.C. 2901.13(B)(1) provides a one-year
statute of limitations for an offense that includes an element of fraud.
{¶ 2} We hold that the one-year limitation period in R.C. 2901.13(B)(1) is
not applicable to the facts in the instant case. We also hold that pursuant to R.C.
2901.13(F), the six-year statute of limitations in R.C. 2901.13(A)(1)(a) begins to
run for a felony offense that contains an element of fraud only after the corpus
delicti of the offense is discovered. Accordingly, we affirm the judgment of the
court of appeals.
II. Facts and Procedure
{¶ 3} In December 2000, the pastor at the United Methodist Church in
Metamora, Ohio announced to the congregation that Esther Benfer intended to
donate her farm to the church.
{¶ 4} In May 2001, appellant, Linda S. Cook, who was a practicing
attorney at the time, met with Benfer to discuss estate planning. Toledo Bar Assn.
v. Cook, 114 Ohio St. 3d 108, 2007-Ohio-3253, 868 N.E.2d 973, ¶ 6. Benfer
informed Cook that she wanted to donate her farm to the church, but she wanted
to be able to live on the farm as long as her health permitted. Id. at ¶ 10. Cook
advised Benfer that she could qualify for Medicaid coverage by divesting herself
of the farm three years before she applied to Medicaid for nursing-home care.
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{¶ 5} Cook drafted a quitclaim deed giving title to the farm to herself as
trustee, while reserving a life estate in Benfer. Cook at ¶ 12. That deed purported
to be executed and witnessed on May 20, 1998, but it was not filed until July 12,
2001.
{¶ 6} Subsequently, Cook struck the word “trustee” from the deed,
inserted the word “married,” and rerecorded it on September 10, 2001. She also
added to the deed the phrase “being rerecorded to correct Grantee marital status.”
Cook claimed to have made this change because “she had mistakenly given the
farm to herself as trustee, rather than to herself personally in accordance with
[Benfer’s] wishes.” Cook at ¶ 20.
{¶ 7} Cook filed a third deed on December 13, 2001, which purported to
transfer the farm from Cook to the church, with a life estate for Benfer.
{¶ 8} Finally, Cook filed a fourth deed on September 8, 2004, which again
purported to transfer the farm from Cook to the church, with a life estate reserved
for Benfer.
{¶ 9} In January 2004, the church trustees received a contract that
purported to transfer the farm to the church. An attorney advised the church
trustees that they should go to the Fulton County Recorder’s Office to see how the
deed was recorded. In February 2004, the church trustees searched deeds at the
Fulton County Recorder’s Office but found no deed transferring the farm to the
church. Instead, they discovered the first deed — the deed that transferred the
farm to Cook as trustee — and the second deed — the deed that put the farm in
Cook’s name personally.
{¶ 10} In April 2004, the Toledo Bar Association received a grievance
alleging disciplinary violations against Cook regarding these deeds. In April
2005, the bar association certified a disciplinary complaint against Cook with the
Board of Commissioners on Grievances and Discipline of the Supreme Court of
Ohio.
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{¶ 11} A panel of the board issued findings of fact and conclusions of law
and determined that Cook had violated various Disciplinary Rules, inter alia, by
intentionally backdating the first deed and changing the grantee designation on
the second deed. The board adopted the findings of misconduct and
recommended that Cook be disbarred. In Cook, 114 Ohio St. 3d 108, 2007-Ohio-
3253, 868 N.E.2d 973, the court disbarred her.
{¶ 12} In October 2006, the bar association reported its findings to the
Lucas County Prosecutor’s Office.
{¶ 13} On July 18, 2007, a grand jury returned a two-count indictment
against Cook, charging her with tampering with records in violation of R.C.
2913.42(A)(1) and (B)(4) and with theft from an elderly person in violation of
R.C. 2913.02(A)(2) and (B)(3).
{¶ 14} R.C. 2913.42(A)(1) provides, “No person, knowing the person has
no privilege to do so, and with the purpose to defraud or knowing that the person
is facilitating a fraud, shall * * * [f]alsify, destroy, remove, conceal, alter, deface,
or mutilate any writing, computer software, data, or record.” Under R.C.
2913.42(B)(4), tampering with records is a third-degree felony if the record is
kept by a local, state, or federal governmental entity.
{¶ 15} Cook moved to dismiss the tampering-with-records charge
pursuant to the six-year statute of limitations for felonies in R.C.
2901.13(A)(1)(a). Cook alleged that the crime occurred when she filed the first
deed on July 12, 2001, and that the state did not file charges against her until the
July 18, 2007 indictment, six days after the six-year statute of limitations had
expired. The trial court granted Cook’s motion and dismissed the charge.
{¶ 16} The court of appeals found that “the corpus delicti of the
tampering-with-records charge in relation to the filing of the July 12, 2001 deed
was not known until, at the earliest, February 2004, when the church trustees
discovered irregularities in the deeds.” State v. Cook, 184 Ohio App. 3d 382,
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2009-Ohio-4917, 921 N.E.2d 258, ¶ 37. Applying the tolling provision in R.C.
2901.13(F), the court of appeals held that the six-year statute of limitations in
R.C. 2901.13(A)(1)(a) did not begin to run until February 2004. Id. at ¶ 42.
Accordingly, the court of appeals reversed the judgment dismissing the
tampering-with-records charge, holding that the indictment returned against Cook
on July 18, 2007, was timely.
{¶ 17} The court of appeals certified that a conflict existed between its
decision and the decisions in State v. Mitchell (1992), 78 Ohio App. 3d 613, 605
N.E.2d 978, an Eighth Appellate District case, and State v. Stephens (July 25,
1997), Clark App. No. 96 CA 0117, 1997 WL 435694, a Second Appellate
District case.
{¶ 18} This court determined that a conflict existed and ordered that the
parties brief the following issue: “Whether R.C. 2901.13(F) operates to toll the
six-year period of limitations provided for in R.C. 2901.13(A) so that it extends
beyond six years from the date upon which a felony offense was committed where
the corpus delicti of the offense is discovered within the period of limitations and
more than one year prior to expiration of the limitation period.” State v. Cook,
124 Ohio St. 3d 1440, 2010-Ohio-188, 920 N.E.2d 371.
{¶ 19} Cook argues that she committed the tampering-with-records
offense on July 12, 2001, when she filed the first deed, although the corpus delicti
was not discovered until February 2004. Nevertheless, relying on our decision in
State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A. (1999),
85 Ohio St. 3d 582, 709 N.E.2d 1192, she argues that the tolling provision in R.C.
2901.13(F) is not applicable. Instead, she argues that pursuant to Climaco, the
six-year statute of limitations for felony offenses in R.C. 2901.13(A)(1)(a) began
to run from the date of the offense on July 12, 2001, and therefore the state’s July
18, 2007 indictment was not timely filed.
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{¶ 20} Alternatively, Cook argues that R.C. 2901.13(B)(1) provides a
tolling provision and one-year limitation period specifically for offenses that
include an element of fraud, while R.C. 2901.13(F) provides a general tolling
provision. Cook argues that because the offense herein includes an element of
fraud, R.C. 2901.13(B)(1) provides the applicable tolling provision and one-year
limitation period running from the date of discovery. Thus, Cook argues that the
state had only one year from February 2004 in which to file charges and therefore
the July 18, 2007 indictment was not timely filed.
{¶ 21} The state argues that the tolling provision and one-year limitation
period in R.C. 2901.13(B)(1) do not apply to the facts in the instant case. The
state also argues that Climaco is distinguishable from this case and therefore does
not preclude application of the tolling provision in R.C. 2901.13(F). Thus, the
state argues that the six-year statute of limitations in R.C. 2901.13(A)(1)(a)
applies and that the state had six years from February 2004 in which to file
charges against Cook. Therefore, the state argues, its July 18, 2007 indictment of
Cook was timely.
{¶ 22} We agree with the state.
III. Analysis
{¶ 23} We begin our analysis with a brief review of the definition of the
corpus delicti of a criminal offense. This court has stated that the “corpus delicti”
of a crime is “the body or substance of the crime and usually [has] two elements:
(1) the act itself, and (2) the criminal agency of the act.” State v. Hensley (1991),
59 Ohio St. 3d 136, 138, 571 N.E.2d 711, citing State v. Black (1978), 54 Ohio
St.2d 304, 307, 8 O.O.3d 296, 376 N.E.2d 948. “For example, when the offense
is homicide, the corpus delicti ‘involves two elements, i.e., (1) the fact of death
and (2) the existence of the criminal agency of another as the cause of death.’ ”
State v. Van Hook (1988), 39 Ohio St. 3d 256, 261, 530 N.E.2d 883, quoting State
v. Manago (1974), 38 Ohio St. 2d 223, 226-227, 67 O.O.2d 291, 313 N.E.2d 10.
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January Term, 2010
The corpus delicti is relevant in this case because a criminal statute of limitations
may be tolled when the corpus delicti of the offense is not immediately
discoverable. See Hensley, 59 Ohio St. 3d at 140, 571 N.E.2d 711 (“the corpus
delicti of crimes involving child abuse or neglect is discovered when a responsible
adult, as listed in R.C. 2151.421, has knowledge of both the act and the criminal
nature of the act”).
{¶ 24} Next we examine the general statute of limitations for criminal
offenses found in R.C. 2901.13:
{¶ 25} “(A)(1) Except as provided in division (A)(2) or (3) of this section
or as otherwise provided in this section, a prosecution shall be barred unless it is
commenced within the following periods after an offense is committed:
{¶ 26} “(a) For a felony, six years;
{¶ 27} “ * * *
{¶ 28} “(B)(1) Except as otherwise provided in division (B)(2) of this
section, if the period of limitation provided in division (A)(1) or (3) of this section
has expired, prosecution shall be commenced for an offense of which an element
is fraud or breach of a fiduciary duty, within one 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.
{¶ 29} “* * *
{¶ 30} “(F) The period of limitation shall not run during any time when
the corpus delicti remains undiscovered.”
{¶ 31} “ ‘In construing a statute, a court's paramount concern is the
legislative intent. In determining legislative intent, the court first reviews the
applicable statutory language and the purpose to be accomplished.’ ” Fisher v.
Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 20, quoting
State ex rel. Watkins v. Eighth Dist. Court of Appeals (1998), 82 Ohio St. 3d 532,
535, 696 N.E.2d 1079. Courts are “required to apply the plain language of a
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statute when it is clear and unambiguous.” Jaques v. Manton, 125 Ohio St. 3d 342,
2010-Ohio-1838, 928 N.E.2d 434, ¶ 14, citing State v. Lowe, 112 Ohio St. 3d 507,
2007-Ohio-606, 861 N.E.2d 512, ¶ 9.
{¶ 32} “Generally, statutes of limitations begin to run when the crime is
complete.” State v. Swartz (2000), 88 Ohio St. 3d 131, 133, 723 N.E.2d 1084,
citing Toussie v. United States (1970), 397 U.S. 112, 115, 90 S. Ct. 858, 25
L. Ed. 2d 156. And unless charges are commenced against the accused prior to the
expiration of the limitation period, the state is barred from prosecuting the
accused. R.C. 2901.13(A)(1).
{¶ 33} However, “the General Assembly has afforded the state certain
statutory exceptions to the absolute bar, and has done so in the form of specialized
rules and tolling provisions.” Hensley, 59 Ohio St. 3d at 137, 571 N.E.2d 711.
One of these exceptions is the tolling provision found in R.C. 2901.13(F), which
provides that the “period of limitation shall not run during any time when the
corpus delicti remains undiscovered.” The language in R.C. 2901.13(F) is
unequivocal and contains no exception, qualification, or limitation regarding the
offense to which it applies, nor does it contain any exception for acts of fraud.
See generally Hensley at 137. Thus, we hold that pursuant to R.C. 2901.13(F), for
a felony offense that contains an element of fraud, the six-year statute of
limitations in R.C. 2901.13(A)(1)(a) begins to run only after the corpus delicti of
that offense is discovered.
State v. Climaco
{¶ 34} Cook argues that pursuant to State v. Climaco, Climaco,
Seminatore, Lefkowitz & Garofoli Co., L.P.A., 85 Ohio St. 3d 582, 709 N.E.2d
1192, if the corpus delicti of an offense is discovered before the applicable statute
of limitations expires, then the tolling provision in R.C. 2901.13(F) does not
apply. Instead, Cook claims that the state has the time remaining on the
applicable limitation period running from the date that the criminal act occurred
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within which to charge the defendant. We hold that the decision in Climaco is not
applicable and should be limited to its facts.
{¶ 35} In Climaco, the state charged a law firm with falsification (R.C.
2921.13(A)(7)) on February 1, 1996, for improperly reporting honoraria in 1993.
Id. at 584. The law firm argued that the two-year statute of limitations for a
misdemeanor offense found in R.C. 2901.13(A)(2) had expired. The state argued
that R.C. 2901.13(F) applied to toll the running of the two-year statute of
limitations, because the criminal agency of the falsification did not surface until
February 1994, and therefore the February 1, 1996 indictment was timely filed.
{¶ 36} Because the alleged violations regarding the honoraria were so well
publicized, the court refused to give the state the benefit of the tolling provision of
R.C. 2901.13(F), stating that if it did so under the circumstances of that case, “the
purposes and principles governing criminal statutes of limitation would be
defeated.” Id. at 587.
{¶ 37} The present case can be distinguished because here, unlike in
Climaco, there was no media spotlight or report to alert the authorities or parties
to investigate. The corpus delicti of the offense in the instant case is found only
in the deeds that were created and filed by Cook. Finally, the parties agree that
the corpus delicti of the offense herein was not discovered until February 2004,
the date that the church trustees discovered the deeds transferring Benfer’s farm to
Cook. Accordingly, the policy reasons supporting Climaco do not exist here. See
id. at 586 (“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”). Therefore, we hold that Climaco is not
controlling in the instant case, and we limit Climaco to its facts.
R.C. 2901.13(F) and 2901.13(B)(1) Do Not Conflict
{¶ 38} Cook argues that even if the running of the statute of limitations
was tolled until February 2004, R.C. 2901.13(B)(1) provided the state only one
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year thereafter within which to file charges. In support of this argument, Cook
argues that R.C. 2901.13(F) and 2901.13(B)(1) conflict because R.C. 2901.13(F)
is a general tolling provision that applies to any offense, while R.C. 2901.13(B)(1)
is a specific tolling provision that applies only to an offense that contains an
element of fraud. Because the offense in this case contains an element of fraud,
Cook argues that the specific provision, R.C. 2901.13(B)(1), applies to provide
the state one year within which to file charges after the corpus delicti of the
offense was discovered. Cook argues that because the state did not file the
indictment against Cook within that year, the indictment was not timely filed.
{¶ 39} The state argues that R.C. 2901.13(B)(1) does not apply to the facts
in this case. Again, we agree with the state.
{¶ 40} R.C. 2901.13(B)(1) provides:
{¶ 41} “Except as otherwise provided in division (B)(2) of this section, if
the period of limitation provided in division (A)(1) or (3) of this section has
expired, prosecution shall be commenced for an offense of which an element is
fraud or breach of a fiduciary duty, within one 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.”
{¶ 42} As previously discussed, R.C. 2901.13(F) provides:
{¶ 43} “The period of limitation shall not run during any time when the
corpus delicti remains undiscovered.”
{¶ 44} R.C. 1.51 directs us to first construe conflicting statutory
provisions, where possible, to give effect to both. Only where the conflict is
irreconcilable does R.C. 1.51 mandate that one provision prevail over the other.
We have judicially recognized similar rules of statutory construction:
{¶ 45} “ ‘First, all statutes which relate to the same general subject matter
must be read in pari materia. And, in reading such statutes in pari materia, and
construing them together, this court must give such a reasonable construction as
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to give the proper force and effect to each and all such statutes. The interpretation
and application of statutes must be viewed in a manner to carry out the legislative
intent of the sections. All provisions of the Revised Code bearing upon the same
subject matter should be construed harmoniously. This court in the interpretation
of related and co-existing statutes must harmonize and give full application to all
such statutes unless they are irreconcilable and in hopeless conflict.’ ” (Citations
omitted.) United Tel. Co. of Ohio v. Limbach (1994), 71 Ohio St. 3d 369, 372,
643 N.E.2d 1129, quoting Johnson's Mkts., Inc. v. New Carlisle Dept. of Health
(1991), 58 Ohio St. 3d 28, 35, 567 N.E.2d 1018.
{¶ 46} Applying these principles, we hold that R.C. 2901.13(B)(1) and (F)
do not irreconcilably conflict and that each applies to a particular situation
independent of the other.
{¶ 47} R.C. 2901.13(B)(1) gives the state a year within which to file
charges when an offense involving fraud or breach of a fiduciary duty is
discovered by an “aggrieved party.” R.C. 2901.13(F) contains no such
qualification. It defies common sense that the General Assembly would give
felony offenses a six-year statute of limitations upon discovery of the corpus
delicti of the offense, yet limit victims of fraud to only one year.
{¶ 48} Reading these provisions in pari materia, a logical construction is
that R.C. 2901.13(F) tolls the statute of limitations for all criminal offenses,
including offenses involving an element of fraud, from the date the offense is
committed until the corpus delicti of that offense is discovered. But when an
offense involving an element of fraud or breach of fiduciary duty is committed
against multiple parties, who may not even know each other, the offense may be
discovered by some of the aggrieved parties but remain concealed to others. To
the aggrieved party or parties who only later discover the offense, R.C.
2901.13(B)(1) provides the state one additional year in which to file charges
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against the defendant, even if the statute of limitations from the initial discovery
has expired.
{¶ 49} For example, if victim A discovers a felony offense involving
fraud, the state has six years from the date of victim A’s discovery to file charges
pursuant to R.C. 2901.13(F). However, if victim B discovers the corpus delicti of
the same felony offense one day after the statute of limitations has run as to
victim A, R.C. 2901.13(B)(1) provides the state one additional year from the date
of victim B’s discovery of the offense within which to file charges.
{¶ 50} Thus, harmonizing these provisions, we hold that when a person
who is aggrieved by a crime that includes an element of fraud or breach of a
fiduciary duty discovers the corpus delicti of that offense, R.C. 2901.13(B)(1)
provides the state one additional year within which to file charges from the date
that the aggrieved party discovers the corpus delicti of the offense.
The Indictment Was Timely Filed
{¶ 51} The court of appeals held that the corpus delicti of the tampering-
with-records offense was discovered in February 2004, the date that the church
trustees discovered the deeds that transferred Benfer’s farm to Cook. The parties
also accept February 2004 as the discovery date of that offense. Because deeds
are filed in a government office, tampering with them is a third-degree felony
pursuant to R.C. 2913.42(B)(4). Felony offenses have a six-year statute of
limitations. R.C. 2901.13(A)(1)(a). Thus, the indictment filed against Cook on
July 18, 2007, was within the six-year statute of limitations. R.C. 2901.13(B)(1)
is not implicated, nor are its protections required, because nearly three years
remained on the statute of limitations in R.C. 2901.13(A)(1)(a). Accordingly, we
affirm the judgment of the court of appeals.
Answer to the Certified Question
{¶ 52} The question certified to this court was “[w]hether R.C. 2901.13(F)
operates to toll the six-year period of limitations provided for in R.C. 2901.13(A)
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so that it extends beyond six years from the date upon which a felony offense was
committed where the corpus delicti of the offense is discovered within the period
of limitations and more than one year prior to expiration of the limitation period.”
Cook, 124 Ohio St. 3d 1440, 2010-Ohio-188, 920 N.E.2d 371. Our answer to this
question requires more than a yes or no response. Our analysis concludes that
pursuant to R.C. 2901.13(F), for a felony offense that contains an element of
fraud, the six-year statute of limitations in R.C. 2901.13(A)(1)(a) begins to run
only after the corpus delicti of that offense is discovered. The one-year limitation
period in R.C. 2901.13(B)(1) applies only when an aggrieved party discovers an
offense that contains an element of fraud after the statute of limitations has
expired.
Certified question answered
and judgment affirmed.
O’CONNOR, O’DONNELL, and CUPP, JJ., concur.
LANZINGER, J., concurs in judgment only.
BROWN, C.J., and PFEIFER, J., dissent.
__________________
BROWN, C.J., dissenting.
{¶ 53} Citing a case decided by this court in 2000, the majority
acknowledges the general rule that “statutes of limitations begin to run when the
crime is complete.” State v. Swartz (2000), 88 Ohio St. 3d 131, 133, 723 N.E.2d
1084. Similarly, the majority acknowledges R.C. 2901.13(A)(1), which codifies
the general rule that criminal prosecutions must be initiated within certain
prescribed time frames after an offense is committed, i.e., six years for felonies
and two years for misdemeanors.1
1. {¶ a} R.C. 2901.13(A)(1) provides:
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{¶ 54} The majority today nevertheless holds that R.C. 2901.13(F) is the
starting point for determining when the criminal statute of limitations begins to
run. It concludes, “R.C. 2901.13(F) tolls the statute of limitations for all criminal
offenses, including offenses involving an element of fraud, from the date the
offense is committed until the corpus delicti of that offense is discovered.”
(Emphasis sic.) As a result, in future cases, subsection (F) of R.C. 2901.13, rather
than subsection (A), will determine the time at which the criminal statute of
limitations commences. I dissent.
{¶ 55} Today’s holding directly contradicts established precedent. In
1999, this court expressly rejected the premise today adopted by the majority, as
follows:
{¶ 56} “[T]o construe subsection (F) as controlling would render
subsection (A)(2)[2] meaningless[;] that is, a prosecution for a misdemeanor
offense would be barred if it were not commenced within two years after the
offense was committed. Subsection (A) is of no consequence if subsection (F)
controls all circumstances, including situations, such as here, in which discovery
occurs within the statutory period. The two-year period for misdemeanors would
begin only on discovery of the offense, regardless of the date of the commission
of the offense. Had the General Assembly intended this, it would have required
that prosecution be initiated within two years after an offense is discovered
instead of within two years after an offense is committed. The language ‘except as
{¶ b} “Except as provided in division (A)(2) or (3) of this section or as otherwise provided in
this section, a prosecution shall be barred unless it is commenced within the following periods
after an offense is committed:
{¶ c} “(a) For a felony, six years;
{¶ d} “(b) For a misdemeanor other than a minor misdemeanor, two years;
{¶ e} “(c) For a minor misdemeanor, six months.” (Emphasis added.)
2. Subsection (A)(2) of the 1991 version of the statute of limitations, providing a two-year
limitations period for misdemeanors other than minor misdemeanors, is now codified as R.C.
2901.13(A)(1)(b). See 134 Ohio Laws, Part II, 1866, 1896.
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otherwise provided’ contained within subsection (A) clearly does not contemplate
such an expansive reading of the statute.” State v. Climaco, Climaco, Seminatore,
Lefkowitz & Garofoli Co., L.P.A. (1999), 85 Ohio St. 3d 582, 587-588, 709 N.E.2d
1192.
{¶ 57} The majority attempts to distinguish Climaco from the case at bar,
stating that in Cook, “unlike in Climaco, there was no media spotlight or report to
alert the authorities or parties to investigate.” It concludes that this distinction
renders Climaco inapplicable, because “the policy reasons supporting Climaco do
not exist here.” The majority therefore “limit[s Climaco] to its facts.”
{¶ 58} I fear that the apt observation of Judge Patrick J. Schiltz applies
here: “To assert that an opinion of an appellate court has been limited to its facts
is usually a polite way of saying ‘implicitly overruled.’ ” Bacon v. Hennepin Cty.
Med. Ctr. (Dec. 11, 2007), D.Minn. No. 06-CV-2359, 2007 WL 4373104, *9.
{¶ 59} Initially, I observe that the facts of Climaco and the facts in Cook
are more similar than dissimilar in that, in each case, the prosecutors were aware
of the underlying circumstances well before expiration of the general statutes of
limitations. In the case at bar, the church members allegedly harmed by Cook’s
actions knew in early 2004 enough facts to create a suspicion that Cook had
backdated the deed prior to presenting it for filing at the county recorder’s office.
This discovery occurred fully three years before the July 12, 2007 expiration of
the six-year period following Cook’s alleged commission of the felony offense of
tampering with public records.3 In addition, the prosecutor was on notice of the
3. I am perplexed as to how the state intends to prove on remand that Cook “tampered with public
records” so as to elevate her offense from a misdemeanor to a felony. R.C. 2913.42 provides that,
with an exception not relevant here, tampering with private records constitutes a misdemeanor
while tampering with public records, i.e., records “kept by or belong[ing] to a local, state, or
federal governmental entity,” constitutes a felony. Cook’s alleged act of backdating the first deed
occurred before the deed was in the possession of any public official. And although Cook filed
subsequent deeds in an attempt to “correct” the recorded chain of title, the parties do not suggest
that Cook somehow altered the contents of the first deed while it was being “kept by” the county
recorder after its July 12, 2001 filing. If her actions constituted merely the misdemeanor offense of
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facts at least as early as October 2006, well before July 12, 2007, the date of
expiration of the general six-year statute of limitations. On April 18, 2005, the
Toledo Bar Association filed a disciplinary grievance against Cook and in
October 2006 formally reported to the prosecutor its findings of probable cause of
a disciplinary violation based in part on Cook’s backdating of the first deed.
{¶ 60} It is a distinction without a difference that the prosecutors’
awareness of potentially criminal conduct was based on media attention in
Climaco and on express notification by the Toledo Bar Association in Cook. In
both cases, the prosecutors knew within the general limitations period of the
underlying facts, yet failed to timely investigate and prosecute.
{¶ 61} But more significantly, the court in Climaco considered and
expressly rejected the premise adopted today, recognizing, “[I]f we were to apply
subsection (F) * * * [to afford the state] two years from the discovery of the
offense to begin prosecution, the purposes and principles governing criminal
statutes of limitations would be defeated.” Id., 85 Ohio St.3d at 587, 709 N.E.2d
1192. Those principles were identified in Climaco as including (1) protecting
individuals from having to defend themselves against charges when the basic
facts may have become obscured by the passage of time and minimizing the
danger of official punishment because of acts in the far-distant past and (2)
encouraging law-enforcement officials to promptly investigate suspected criminal
activity. See also 1974 Committee Comment to Am.Sub.H.B. No. 511 (“the basic
thrust 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. * * * The rationale for limiting criminal prosecutions is that they should
tampering with private records, her conviction is time-barred even under the majority’s
interpretation of the statute of limitations. The misdemeanor two-year statute of limitations would
have expired in early 2006, as the church members discovered in 2004 that the deed may have
been backdated. The state filed the criminal charges against Cook in 2007, after the two-year
statute of limitations for prosecution of misdemeanors had expired.
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January Term, 2010
be based on reasonably fresh, and therefore more trustworthy evidence”). The
majority opinion fails to explain why these principles applied in Climaco but do
not apply in the case at bar.
{¶ 62} Although the majority effectively overrules Climaco, it fails
without explanation to acknowledge that action or to undertake this court’s
established analysis for overruling prior cases. See Westfield Ins. Co. v. Galatis,
100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d 1256.4
{¶ 63} Climaco has been in place for over a decade and establishes a clear
and workable standard for determining the duration within which a crime may be
prosecuted consistent with the criminal statute of limitations. In contrast, under
today’s holding, the commencement of the running of the statute of limitations in
future criminal cases will be murky at best. In any circumstance where a
prosecutor chooses to charge an individual with a misdemeanor after two years
(or a felony after six years) from the date of the commission of the offense, the
prosecutor will be able to extend the statute by asserting that no one knew about
the crime until some later time — regardless of whether discovery of the corpus
delicti would have occurred with the exercise of due investigatory diligence by
the state. Moreover, the majority sheds no light on the quite foreseeable issue as
to whether today’s decision, which represents a major change to Ohio’s law,
4. While I have concerns about the wisdom, feasibility, and continued viability of the Galatis test
for overruling cases, that test continues to be recognized in principle by a majority of this court.
See, e.g., Ohio Apt. Assn. v. Levin, 127 Ohio St. 3d 76, 2010-Ohio-4414, 936 N.E.2d 919. Both
Justices Pfeifer and Lanzinger have observed that Galatis has produced decisions in which the
court strains to limit or distinguish earlier cases rather than simply to overrule them. See State ex
rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio St. 3d 337, 348, 2007-Ohio-
5022, 875 N.E.2d 59 (Pfeifer, J., dissenting); Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192,
231, 2008-Ohio-546, 883 N.E.2d 377 (Lanzinger, J., concurring). It is difficult to disagree with
their conclusion that Galatis establishes a “hopelessly random and formulaic approach to
overruling precedent.” Id. at ¶ 222. In my view, the law is unclear about when Galatis applies. If
the price of continued adherence to Galatis in some cases is the issuance of opinions that are
neither forthright nor clear, then Galatis should itself be reconsidered.
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should be applied retroactively to extend the statute of limitations as to offenses
that have already been committed.
{¶ 64} If Climaco misconstrued the legislative intent underlying R.C.
2901.13, a statute that concededly is rife with ambiguity, the General Assembly
has had ample time to correct the Climaco interpretation of the criminal statute of
limitations. In fact, in 2008 the 127th General Assembly did change R.C. 2901.13
in response to Climaco — but only “with respect to the running of the criminal
statute of limitations for certain offenses having a direct relation to certain public
servants, whether or not the discovery of the corpus delicti of those offenses
occurs within or outside of the otherwise generally applicable period of limitation
for criminal prosecution under section 2901.13 of the Revised Code.” (Emphasis
added.) Section 3 of 2008 S.B. No. 219. The logical conclusion follows that the
General Assembly concurred, or at least acquiesced, in the Climaco interpretation
of the statute as to crimes not specifically identified in the statutory amendment.
{¶ 65} The majority holds, and I agree, that subsection (B) of R.C.
2901.13 does not apply to the case at bar. R.C. 2901.13(B) provides that when
fraud is an element of the offense, as in the case at bar, and if the standard period
of limitation has expired, prosecution may be commenced within one year after
discovery of the offense by an aggrieved person. Thus, had aggrieved individuals
first discovered after July 12, 2007, that the date on the recorded deed was
fraudulent, the state could have initiated prosecution within an additional year
from the date of discovery. Because, however, church members discovered the
relevant facts within the “standard period of limitation,” i.e., in February or March
2004, the extension of time provided by R.C. 2901.13(B) is not available to the
state.
{¶ 66} But the majority’s interpretation of R.C. 2901.13(B) is nevertheless
troubling. The majority states that “when an offense involving an element of fraud
or breach of fiduciary duty is committed against multiple parties, who may not
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January Term, 2010
even know each other, the offense may be discovered by some of the aggrieved
parties, but remain concealed to others. To the aggrieved party or parties who
only later discover the offense, R.C. 2901.13(B)(1) provides the state one
additional year in which to file charges against the defendant even if the statute of
limitations from the initial discovery has expired.” Majority opinion at ¶ 48. The
majority illustrates its interpretation by providing the following example: “if
victim A discovers a felony offense involving fraud, the state has six years from
the date of victim A’s discovery to file charges pursuant to R.C. 2901.13(F).
However, if victim B discovers the corpus delicti of the same felony offense one
day after the statute of limitations has run as to victim A, R.C. 2901.13(B)(1)
provides the state one additional year from the date of victim B’s discovery of the
offense within which to file charges.” Id. at ¶ 49.
{¶ 67} Presumably, under the majority’s reasoning, if victims C, D, and E
also existed, the state could extend the statute of limitations for an additional one-
year period after each of those victims discovered the corpus delicti – even if that
discovery occurred many, many years after victim A’s and victim B’s
discoveries. If the majority does not intend this result, it should say so. Even
accepting arguendo the majority’s view that the statute of limitations does not
begin to run until some individual discovers the corpus delicti (and that individual
might be a law-enforcement official rather than an aggrieved party), I believe that
R.C. 2901.13(B) could produce only a single one-year extension, which would
commence at the time of the first discovery by an individual aggrieved by fraud
and only where that discovery occurs after the standard period of limitations has
expired.
{¶ 68} In my view, correct application of the criminal statute of limitations
as interpreted in Climaco bars Cook’s further prosecution. The analysis should
begin with the general rule established in R.C. 2901.13(A). Because the state
charged Cook with the felony offense of tampering with public records, the
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prescribed limitation period for prosecution is six years. Under the state’s theory
of the case, the charged criminal offense was committed on July 12, 2001, when
Cook filed the misdated deed with the county recorder’s office. Thus, applying
the six-year felony statute from the date of the commission of the offense,
prosecution was barred after July 12, 2007, unless one of the exceptions to the
general rule of R.C. 2901.13(A) applies. R. C. 2901.13(B) does not apply in this
case, as discovery by persons allegedly aggrieved by Cook’s fraud occurred
within the general six-year limitations period – not after “the period of limitation
provided in division (A)(1) or (3) of this section [had] expired.” R.C. 2901.13(B).
The state does not suggest that any other exception to the general six-year rule
applies. Cook was not charged until July 17, 2007 – six days after expiration of
the limitations period. As the trial court correctly recognized, Cook’s
prosecution was thus time-barred. Because the majority concludes otherwise, I
dissent.
__________________
PFEIFER, J., dissenting.
{¶ 69} I dissent from the majority opinion and join Chief Justice Brown’s
dissent but for one point: this court has never held applicable to a criminal case
the analysis for overturning precedent imposed by a majority of this court in
Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849, 797 N.E.2d
1256. For example, recently in State v. Horner, 126 Ohio St. 3d 466, 2010-Ohio-
3830, 935 N.E.2d 26, this court overruled State v. Colon, 118 Ohio St. 3d 26,
2008-Ohio-1624, 885 N.E.2d 917, and overruled in part State v. Colon, 119 Ohio
St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, with nary a mention of Galatis.
__________________
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett,
Assistant Prosecuting Attorney, for appellee.
John F. Potts, for appellant.
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January Term, 2010
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Brandon J. Lester, Deputy Solicitor, and Robert Kenneth James, Assistant
Solicitor, urging affirmance for amicus curiae Ohio Attorney General.
Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant
Public Defender, urging reversal for amicus curiae Ohio Public Defender.
______________________
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