State v. Brown , 2022 Ohio 4347 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Brown, Slip Opinion No. 2022-Ohio-4347.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2022-OHIO-4347THE STATE OF OHIO, APPELLANT , v. BROWN , APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Brown, Slip Opinion No. 2022-Ohio-4347.]
Criminal law—R.C. 2913.42(A)(1)—Tampering with records—Litigation
privilege—The common-law litigation privilege does not shield a person
from criminal liability for tampering with records in violation of R.C.
2913.42(A)(1)—Litigation privilege applies to civil suits only for
defamatory statements made during judicial proceedings that were
reasonably related to those proceedings—Court of appeals’ judgment
reversed and cause remanded for that court to address assignments of error
not previously reached.
(No. 2021-0392—Submitted March 9, 2022—Decided December 7, 2022.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-190399, 2021-Ohio-597.
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FISCHER, J.
{¶ 1} Appellee, Monai Sherea Brown, filed a bogus quiet-title action
against a homeowner in Cincinnati to take possession of his home. Appellant, the
state of Ohio, prosecuted Brown for criminal offenses related to her filing of that
civil case. Brown was convicted of tampering with records in violation of R.C.
2913.42(A)(1), which prohibits a person from falsifying any writing or record
“knowing the person has no privilege to do so.” (Emphasis added.) The First
District Court of Appeals reversed Brown’s conviction, finding that her false
statements were “privileged” because she made them in a judicial proceeding,
2021-Ohio-597, ¶ 25, and holding that those privileged statements could not form
the basis of her tampering-with-records charge, id. at ¶ 26.
{¶ 2} We accepted the state’s discretionary appeal to determine whether the
rule of absolute privilege, also known as the litigation privilege, which was applied
by the appellate court, precludes successful prosecution of a tampering-with-
records charge. See 163 Ohio St.3d 1439, 2021-Ohio-1896, 168 N.E.3d 1195. We
hold that the litigation privilege, which protects a person from civil liability for
defamatory statements that were made during judicial proceedings and that were
reasonably related to the proceedings in which they were made, does not shield a
person from criminal liability related to those statements. Therefore, we reverse
the judgment of the First District, and we remand the cause for further proceedings
consistent with this opinion.
I. BACKGROUND
A. Brown files a quiet-title action against an unsuspecting homeowner
{¶ 3} Brown had never met Loie Hallug, the owner of 511 McAlpin
Avenue, and had allegedly never stepped foot inside his home. Yet, on July 21,
2017, Brown filed a quiet-title action against Hallug seeking to take his home, as
she had done to at least two other unsuspecting homeowners.
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{¶ 4} Brown’s complaint to quiet title against Hallug was fraught with
inconsistencies and misrepresentations. Brown claimed to be the lawful owner of
511 McAlpin Avenue. Though she acknowledged that Hallug had once had an
interest in the property, she alleged that Hallug had lost his interest in the property
when he failed to pay his mortgage and “permanently abandoned” his home. She
recognized that the “original owners” would have superior rights to her own, but
she claimed that Hallug’s “non-use and permanent abandonment” of the property
in combination with her “subsequent act of actual physical possession of said
premises” resulted in a transfer of ownership to and possession of the property by
her. However, in an affidavit attached to her complaint, Brown declared that Hallug
was the lawful owner of 511 McAlpin Avenue. And while she claimed ownership
of the property in her complaint, a fact she swore to be true, Brown asserted in an
affidavit of indigency she filed in the quiet-title action that she did not own any
property.
{¶ 5} Additionally, in her complaint filed in the Hamilton County Court of
Common Pleas on July 21, 2017, Brown maintained that she had entered the
property at 511 McAlpin Avenue to take possession of it. Brown stated that she
“entered” the property on August 1, 2017—a date that was 11 days in the future.
Not only had this date not yet occurred when Brown filed her complaint to quiet
title, but the date of possession that Brown identified in her complaint was
inconsistent with the declaration in her affidavit attached to the complaint in which
she averred that she took possession of the property on July 31, 2017—a date that
was ten days in the future.
{¶ 6} Brown asserted in her complaint that Hallug had been “personally
notified” (boldface and underlining deleted) of her “claim of rights in ownership”
of the property. She further stated in her affidavit that Hallug had been notified in
a “letter of intent” sent “via certified mail” to 511 McAlpin Avenue of her intention
to possess and occupy the property. Despite Brown’s assertions in her complaint
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and the attached affidavit that she had notified Hallug of her intent when she filed
her complaint, she had not done so—a fact she later admitted at trial.
{¶ 7} Rather, six days after filing the quiet-title action against Hallug,
Brown sent Hallug a letter of intent to acquire his property by “claiming title by
right and/or adverse possession.” In her letter, Brown demanded that Hallug pay
her $733 for improvements to the property that she had never made. She also
warned Hallug that if he did not respond to her demands, she may pursue legal
action, even though she had already done so.
{¶ 8} Hallug received Brown’s letter of intent on August 9, 2017. He
thought Brown’s letter was “ridiculous.” Although Hallug’s home had been vacant
for two months in 2017 during his divorce proceedings and although he had
experienced some financial difficulties that put his mortgage in arrears, Hallug
eventually moved back into the home, and he worked with his mortgage lender to
amend his mortgage. Brown did not make any improvements to Hallug’s home
while the property sat vacant. Her demands for monetary compensation for
improvements made to the home were based on bogus factual assertions.
Nevertheless, Hallug responded to Brown’s letter of intent at the return address that
was provided on the envelope, rejecting her request for money and her claims to
his home. But Hallug’s response never reached Brown; it was returned to sender.
{¶ 9} Soon thereafter, Hallug was served with Brown’s complaint against
him. Hallug also discovered that Brown had placed the water bill for 511 McAlpin
Avenue in her name. Hallug paid an attorney $1,500 to represent him in the quiet-
title action. Hallug’s attorney filed a motion to dismiss Brown’s complaint, which
the common pleas court granted.
B. Brown is charged with crimes related to her quiet-title action against
Hallug
{¶ 10} The financial-crimes unit of the Cincinnati police department
investigated Brown after discovering her connection with a family that had filed
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several quiet-title actions, false mechanics’ liens, and other legal documents against
property owners in an effort to take their properties. A grand jury indicted Brown
on charges of tampering with records kept by a governmental entity in violation of
R.C. 2913.42(A)(1), theft in violation of R.C. 2913.02(A)(3), and unauthorized use
of property in violation of R.C. 2913.04(A). Brown pleaded not guilty, waived her
right to counsel, and proceeded pro se.
{¶ 11} At trial, the state presented witness testimony demonstrating that
Hallug had been the owner of 511 McAlpin Avenue since 2014, that Hallug
remained the owner as of the date of Brown’s criminal trial in 2019, and that Hallug
had never abandoned the property as Brown claimed in her complaint. Brown even
admitted that some of the statements that she had made in her complaint were false.
{¶ 12} The state also elicited testimony from Brown in which she conceded
that her affidavit of indigency included a false statement. Brown alleged in her
affidavit of indigency that she had no assets and no income, and she signed the
affidavit acknowledging that she was “subject to criminal charges for providing
false information” therein. However, Brown admitted that she owned a vehicle
when she filed her affidavit of indigency, but she failed to include it in the “[o]ther
property” category of the assets section of the form.
{¶ 13} The jury found Brown guilty of tampering with records, acquitted
her of unauthorized use of property, and could not reach a decision on the theft
count. After receiving the verdicts for the tampering-with-records and
unauthorized-use-of-property counts, the state dismissed the theft count. The trial
court sentenced Brown to one year in prison and ordered her to pay restitution to
Hallug in the amount of $1,500.
C. The First District reverses Brown’s conviction
{¶ 14} Brown appealed her conviction to the First District, raising three
assignments of error. In her first assignment of error, she argued that her conviction
was based on insufficient evidence because either she had a privilege to make false
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statements during a judicial proceeding or the state did not prove that she knew she
had no such privilege.
{¶ 15} The appellate court reversed Brown’s conviction based on her first
assignment of error, finding that there was insufficient evidence to support a
tampering-with-records conviction because Brown’s statements in the quiet-title
action were “privileged” under the doctrine of absolute privilege, which shields a
person from being held civilly liable for defamatory statements that person made
in judicial proceedings so long as those statements bear a reasonable relation to
those proceedings. 2020-Ohio-597 at ¶ 25. The court of appeals therefore reversed
the trial court’s judgment and discharged Brown without reaching her remaining
assignments of error. Id. at ¶ 26-28.
II. LAW AND ANALYSIS
{¶ 16} We accepted the state’s discretionary appeal to consider the
following proposition of law: “The public policy underlying the civil immunity
relied upon by the First District does not support a similar application of criminal
immunity.” See 163 Ohio St.3d 1439, 2021-Ohio-1896, 168 N.E.3d 1195. We
consider this issue in the context of a sufficiency-of-the-evidence challenge.
{¶ 17} Determining whether evidence is legally sufficient to support a
verdict is a question of law that we review de novo. See State v. Groce, 163 Ohio
St.3d 387, 2020-Ohio-6671, 170 N.E.3d 813, ¶ 7. We determine whether the
evidence presented at trial, “when viewed in a light most favorable to the
prosecution, would allow any rational trier of fact to find the essential elements of
the crime beyond a reasonable doubt.” State v. Dent, 163 Ohio St.3d 390, 2020-
Ohio-6670, 170 N.E.3d 816, ¶ 15.
{¶ 18} Under R.C. 2913.42(A)(1), a person is guilty of tampering with
records when that person falsifies a writing or record “knowing the person has no
privilege to do so, and with the purpose to defraud or knowing that the person is
facilitating a fraud.” This means that the state had to prove (1) that Brown falsified
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a writing or record, (2) that Brown knew she did not have the privilege to do so,
and (3) that Brown did so with the purpose to defraud or with the knowledge that
she was facilitating a fraud. The issue in this case concerns the second element:
Brown had to know that she did not have the privilege to falsify a writing or record.
A. The litigation privilege
{¶ 19} We first deal with the issue of privilege. The General Assembly has
defined “privilege” as “an immunity, license, or right conferred by law, bestowed
by express or implied grant, arising out of status, position, office, or relationship,
or growing out of necessity.” R.C. 2901.01(A)(12). The question in this case is
whether the common-law rule of absolute privilege, also known as the litigation
privilege, shields Brown from being criminally prosecuted for tampering with
records. We hold that it does not, for two reasons: (1) the litigation privilege does
not shield a person from being held criminally liable for making a defamatory
statement in a judicial proceeding even when that statement bears a reasonable
relation to the proceeding and (2) even if it did, at least one of the false statements
Brown made in her filings in the quiet-title action against Hallug was not
defamatory and thus cannot be protected by the litigation privilege.
1. History of the litigation privilege in Ohio
{¶ 20} The litigation privilege is a deeply rooted common-law rule that
protects individuals from defamation lawsuits. See generally Hayden,
Reconsidering the Litigator’s Absolute Privilege to Defame, 54 Ohio St.L.J. 985,
1012, 1014-1015 (1993). In the rule’s infancy, “neither party, witness, counsel,
jury [n]or Judge [could] be put to answer, civilly or criminally, for words spoken
in office.” Rex v. Skinner, 98 Eng.Rep. 529, 530, Lofft 55 (K.B.1772). This
concept led to the development of the English rule regarding litigation privilege:
“[N]o action will lie against a party to an action for any defamatory statement made
by him in a pleading, either in civil or criminal proceedings, even though such
statement is false and malicious, and even though irrelevant to the matter in issue.”
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(Emphasis added.) Erie Cty. Farmers’ Ins. Co. v. Crecelius, 122 Ohio St. 210, 212-
213, 171 N.E. 97 (1930). While the English rule regarding litigation privilege
forms the basis of the American rule, the two differ significantly. See id. at 213;
Mauk v. Brundage, 68 Ohio St. 89, 97-98, 67 N.E. 152 (1903); Levy v. Littleford,
19 Ohio Dec. 604, 605-606, 1909 Ohio Misc. LEXIS 29 (1909). The English rule,
as explained above, is broad, see Theiss v. Scherer, 396 F.2d 646, 649 (6th
Cir.1968); whereas the American rule, which was adopted by this court, limits the
types of defamatory statements that are considered privileged and limits the
circumstances in which the privilege applies. See Surace v. Wuliger, 25 Ohio St.3d
229, 231-233, 495 N.E.2d 939 (1986).
{¶ 21} Early on, this court acknowledged that there were many views on the
litigation privilege, ranging from absolute privilege for all statements made during
judicial proceedings, to all relevant statements made during judicial proceedings,
to all not false and malicious statements made during judicial proceedings. Lanning
v. Christy, 30 Ohio St. 115, 118-119 (1876). This court initially adopted the rule
that “[n]o action will lie for any defamatory statement made by a party to a court
proceeding, in a pleading filed in such proceeding, where the defamatory statement
is material and relevant to the issue.” Erie Cty. Farmers’ Ins. Co. at syllabus. The
court, recognizing the need to protect litigation participants from defamation
lawsuits, adopted the rule. Id. at 215. Though the court specifically said that “[n]o
action will lie” against a party for defamatory statements made in certain contexts,
(emphasis added) id. at syllabus, the court emphasized that the litigation privilege
would not shield a person from criminal prosecution for perjury or from an action
for malicious prosecution, id. at 215.
{¶ 22} In Surace, this court clarified the rule announced in Erie Cty.
Farmers’ Ins. Co. and adopted the American rule: “As a matter of public policy,
under the doctrine of absolute privilege in a judicial proceeding, a claim alleging
that a defamatory statement was made in a written pleading does not state a cause
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of action where the allegedly defamatory statement bears some reasonable relation
to the judicial proceeding in which it appears,” Surace at syllabus; see also id. at
232-233. Adopting the public-policy considerations that were discussed in Erie
Cty. Farmers’ Ins. Co., this court acknowledged that the litigation privilege may
“ ‘afford immunity to the evil disposed and the malignant slanderer’ ” but
explained that the privilege was necessary to protect the administration of justice
by preventing “ ‘a multitude of slander and libel suits’ ” and by encouraging “ ‘an
honest suitor’ ” to pursue his or her legal remedies. (Emphasis added.) Surace at
232, quoting Erie Cty. Farmers’ Ins. Co. at 215. Although the court expanded the
litigation privilege in Surace to protect defamers from civil liability, it did not
extend the privilege to protect them from criminal liability.
{¶ 23} Since Surace, this court has applied the litigation privilege to provide
civil immunity to individuals who have made defamatory statements during judicial
proceedings that were reasonably related to those proceedings. See Hecht v. Levin,
66 Ohio St.3d 458, 613 N.E.2d 585 (1993), paragraph two of the syllabus (a person
who makes a relevant statement in an attorney-discipline proceeding enjoys an
absolute privilege against a civil action for defamation); M.J. DiCorpo, Inc. v.
Sweeney, St.3d 497, 634 N.E.2d 203 (1994), syllabus (an informant who provides
an affidavit, statement, or other information to a prosecuting attorney when
reporting the commission of a crime is entitled to an absolute privilege against civil
liability for the statement made if it bears some reasonable relation to the criminal
activity reported); Reister v. Gardner, 164 Ohio St.3d 546, 2020-Ohio-5484, 174
N.E.3d 713, ¶ 10 (the litigation privilege provides absolute immunity from civil
suits for defamatory statements that were made during and were relevant to judicial
proceedings). This application is consistent with Article I, Section 11 of the Ohio
Constitution, which gives citizens the right to free speech but acknowledges that
they are “responsible for the abuse of the right.” That provision further provides
that a person may be criminally prosecuted for libel—i.e., a defamatory statement
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that has been published, see R.C. 2739.01—but must be acquitted if the jury finds
that the statement was true and published with good motives for justifiable ends.
Article I, Section 11, Ohio Constitution.
2. The litigation privilege does not shield a person from being held criminally
liable for tampering with records
{¶ 24} Brown argues that the litigation privilege could extend to shield a
person from criminal charges when the offense requires the defendant to have acted
without “privilege.” Brown points us to the Wisconsin Supreme Court’s decision
in State v. Cardenas-Hernandez, 219 Wis.2d 516, 579 N.W.2d 678 (1998), to
support this position. Under Wis.Stat. Section 942.01(3), a person whose
“communication [is] otherwise privileged” is shielded from prosecution for
criminal defamation. Id. at ¶ 38. Based on the legislative history of that statute, the
Wisconsin Supreme Court held that the common-law privilege of absolute
immunity protects a person who makes defamatory statements in a legal proceeding
from prosecution for criminal defamation just as it would protect that person from
a civil defamation action, because the communication was made in an “otherwise
privileged” context. Id. at ¶ 38-43.
{¶ 25} We acknowledge that R.C. 2913.42(A)(1) and Wisconsin’s
criminal-defamation statute both allow a person to avoid criminal liability if the
person makes a statement that is privileged. But Brown has not provided, nor can
we find, any legislative history in Ohio to support her argument that the litigation
privilege extends beyond protecting a person from civil liability for a defamatory
statement that was made during a judicial proceeding and was reasonably related
to that proceeding. Rather, over 100 years of precedent and Article I, Section 11 of
the Ohio Constitution refute Brown’s assertion that the common-law litigation
privilege shields a person from criminal liability for libelous or perjured statements.
See, e.g., Reister, at ¶ 10; Erie Cty. Farmers’ Ins. Co., 122 Ohio St. at 215, 171
N.E. 97; Costell v. Toledo Hosp., 38 Ohio St.3d 221, 223-224, 527 N.E.2d 85810
January Term, 2022
(1988). Even the Restatement of Torts on absolute immunity makes clear that the
litigation privilege does not extend beyond civil defamation actions. See 3
Restatement of the Law 2d, Torts, Sections 583, 584, 587, 635 (1977). To extend
the litigation privilege into the criminal realm, even for defamatory statements
made during a judicial proceeding, would be inconsistent with this court’s
precedent and Article I, Section 11 of the Ohio Constitution.
{¶ 26} Therefore, we hold that the litigation privilege that shields a person
from civil liability for defamatory statements that the person made during a judicial
proceeding and were reasonably related to that proceeding does not extend to
protect that person from criminal prosecution. See, e.g., Reister, 164 Ohio St.3d
546, 2020-Ohio-5484, 174 N.E.3d 713, at ¶ 8, 10, 14; see also Article I, Section 11,
Ohio Constitution. Accordingly, Brown was not shielded from criminal liability
for the statements she made in the quiet-title action that she filed against Hallug,
and the First District erred in holding otherwise.
B. There is sufficient evidence that Brown knew she had no privilege to
provide false statements in her filings in the quiet-title action
{¶ 27} Brown argues that even if the litigation privilege does not extend to
her false statements, her conviction is based on insufficient evidence because the
state did not prove that she made those statements knowing that she was without
privilege to do so. This argument is without merit.
{¶ 28} Under R.C. 2913.42(A)(1), a person is guilty of tampering with
records when that person falsifies a writing or record “knowing the person has no
privilege to do so.” “When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a person subjectively
believes that there is a high probability of its existence and fails to make inquiry or
acts with a conscious purpose to avoid learning the fact.” R.C. 2901.22(B). Thus,
there is sufficient evidence to prove that Brown falsified a writing or a record
knowing that she had no privilege to do so if she subjectively believed that there
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was a high probability that she did not have a privilege to make a false statement
or if she acted with a conscious purpose to avoid learning that fact.
{¶ 29} Beyond the fact that this court has never recognized the litigation
privilege as shielding a person from criminal liability for making defamatory
statements, the documents that Brown filed in the quiet-title action are evidence
that she in fact knew that she had no privilege to make false statements in her
filings. Both the complaint to quiet title and the affidavit of indigency contained
statements that Brown could be subject to criminal prosecution if she lied in those
documents. She signed and filed each document knowing that fact. Looking at this
evidence in the light most favorable to the prosecution, the evidence is sufficient to
demonstrate that Brown knew that she had no privilege to lie in her filings in the
quiet-title action.
{¶ 30} Therefore, Brown’s argument that the state did not provide sufficient
evidence to prove that she knowingly acted without privilege is without merit. The
first assignment of error Brown asserted in the court of appeals concerning the
sufficiency of the evidence should have been rejected.
III. CONCLUSION
{¶ 31} We hold that the litigation privilege does not shield a person from
being held criminally liable for false statements that the person made during judicial
proceedings and that were reasonably related to the proceedings. We reaffirm that
the litigation privilege provides absolute immunity from civil suits only for
defamatory statements that were made during judicial proceedings and that were
reasonably related to those proceedings. Reister, 164 Ohio St.3d 546, 2020-Ohio-
5484, 174 N.E.3d 713, at ¶ 10; Surace, 25 Ohio St.3d at 233, 495 N.E.2d 939. Thus,
the false statements that Brown made in her complaint against Hallug to quiet title
and in her affidavit of indigency can form the basis of her conviction for tampering
with records in violation of R.C. 2913.42(A)(1), and the court of appeals erred in
holding otherwise.
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{¶ 32} We also find that there was sufficient evidence to prove that Brown
acted “knowing she had no privilege to do so” when she filed her quiet-title
complaint and affidavit of indigency with admittedly false statements and when she
acknowledged in those filings that she could be subject to criminal liability for
providing false information therein. Therefore, Brown’s first assignment of error
on appeal should have been rejected.
{¶ 33} For these reasons, we reverse the judgment of the First District Court
of Appeals. We remand the cause to the appellate court to resolve Brown’s second
and third assignments of error.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and SMITH and BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only.
DONNELLY, J., dissents, with an opinion joined by STEWART, J.
JASON P. SMITH, J., of the Fourth District Court of Appeals, sitting for
DEWINE, J.
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DONNELLY, J., dissenting.
{¶ 34} Because I would dismiss this appeal as having been improvidently
allowed, I dissent. This is not an appropriate case in which to explore the element
of “privilege” in the offense of tampering with records in violation of R.C. 2913.42,
because tampering with records was not an appropriate charge under the facts of
this case.
{¶ 35} R.C. 2913.42, which establishes the offense of tampering with
records, prohibits the adulteration of a writing or record. That statute states that no
person shall “[f]alsify, destroy, remove, conceal, alter, deface, or mutilate any
writing, computer software, data, or record.” R.C. 2913.42(A)(1). The offense of
tampering with records “does not refer to the [adulteration of] particular statements
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contained in the writing” but refers instead to tampering with the writing or record
“as a whole.” Bradley v. Miller, 96 F.Supp.3d 753, 781 (S.D.Ohio 2015). The
concept of a falsified document connotes the genuineness of the document itself
rather than the factual truth of the statements contained therein. See Gilbert v.
United States, 370 U.S. 650, 658, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962), quoting
Marteney v. United States, 216 F.2d 760, 763-764 (10th Cir.1954) (holding that a
document is not a forgery “[w]here the ‘falsity lies in the representation of facts,
not in the genuineness of execution’ ”).
{¶ 36} Appellee, Monai Sherea Brown, authored and filed a civil complaint
that contained false statements of fact. It would have been proper to charge Brown
with perjury, in violation of R.C. 2921.11(A), or falsification, in violation of R.C.
2921.13(A)(1), since both of those offenses prohibit “knowingly mak[ing] a false
statement” in an “official proceeding.” However, Brown did not tamper with her
own original writing. Therefore, she should not have been prosecuted for
tampering with records, in violation of R.C. 2913.42(A)(1).
{¶ 37} Neither of the offenses that fit Brown’s conduct have an element of
lack of privilege. See R.C. 2921.11 and 2921.13. There is no point in using this
case to analyze the meaning of “privilege” as that term is used in R.C. 2913.42(A).
Doing so risks unintended consequences in cases in which charges for tampering
with records would actually be appropriate. I would dismiss this appeal as having
been improvidently allowed, and I therefore dissent.
STEWART, J., concurs in the foregoing opinion.
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Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr. and Alex Scott Havlin, Assistant Prosecuting Attorneys, for
appellant.
Raymond T. Faller, Hamilton County Public Defender, and David H.
Hoffmann, Assistant Public Defender, for appellee.
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