Medina County Courthouse

Saturday, July 24, 2010

Flight to Avoid Prosecution Stops Running of Legal Time Limit for Prosecuting All Crimes by Defendant

Not Just Crimes For Which Accused Had Been Charged at Time of Flight

State v. Bess, Slip Opinion No. 2010-Ohio-3292.
Cuyahoga App. No. 91429, 182 Ohio App.3d 364, 2009-Ohio-2254. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Brown, C.J., not participating.

(July 20, 2010) The Supreme Court of Ohio ruled today that a state law that “tolls” (stops the running of) statutes of limitations for prosecuting a criminal defendant during a period in which the accused purposely avoids prosecution applies to all crimes committed by the accused, regardless of whether an indictment for those crimes had been returned or the underlying criminal activity had been discovered at the time the accused fled.

The Court’s 4-2 majority opinion, which reversed a decision of the 8th District Court of Appeals, was written by Justice Terrence O’Donnell.

In the early 1980s, Larry Bess began living with Theresa Ogden, and the couple married in 1986. Theresa had two children from a prior relationship: a son and a daughter. In 1989, Bess learned that he was under investigation for the alleged sexual abuse of Theresa’s daughter. Before he was charged, Bess fled to Georgia and assumed a false identity in order to escape prosecution. In November 1989, Bess was indicted by a Cuyahoga County grand jury on three counts of rape and seven counts of gross sexual imposition involving Theresa’s daughter. He remained in Georgia and avoided prosecution until 2007, when he was apprehended and returned to Ohio. In the course of preparing its 2007 case against Bess for the sexual abuse of Theresa’s daughter, the Cuyahoga County prosecutor’s office interviewed Theresa’s son, who disclosed for the first time that he also had been sexually molested by Bess between 1982 and 1989. Based on his statements, the state sought and obtained a second indictment charging Bess with additional counts of rape and other criminal offenses for his sexual conduct with Theresa’s son.

The trial court tried Bess for the offenses committed against Theresa’s daughter, which were not time-barred by the statutes of limitations applicable to those offenses because of a provision of state law, R.C. 2901.13(G) that tolls the running of a limitations period for any period of time during which a defendant flees the court’s jurisdiction or otherwise “purposely avoids prosecution.” A jury subsequently found Bess guilty of those charges, and the court of appeals affirmed his convictions.

Bess moved to dismiss the indictment that charged crimes against Theresa’s son, arguing that the six-year statute of limitations applicable to those charges had expired. The state objected, contending that R.C. 2901.13(G) had tolled the statute of limitations during the period when Bess had purposely avoided prosecution. The trial court granted Bess’s motion and dismissed the indictment relating to charges involving crimes against Theresa’s son, finding that Bess had not purposely avoided prosecution for those alleged crimes.

On appeal, the 8th District Court of Appeals affirmed the judgment of the trial court. Relying on the 8th District’s 1994 ruling in State v. McGraw, the author of the appellate court’s decision concluded that Bess’s flight and his concealment from prosecution for the sexual abuse of Theresa’s daughter tolled the statute of limitations for those crimes, but did not toll the statute of limitations for charges related to the sexual abuse of Theresa’s son, which the state learned about after Bess’s apprehension.

The state sought and was granted Supreme Court review of the 8th District’s decision.

Writing for the majority in today’s decision, Justice O’Donnell observed that there are alternative definitions of the term “prosecution” that the legislature could have intended in drafting the statute: a narrow definition referring to the trial and punishment of a specific criminal offense, and a broader definition encompassing the general process of bringing those who commit crimes to justice. In this case, he wrote: “The context in which the word ‘prosecution’ is used in R.C. 2901.13(G) reveals that the word refers to the more general process by which an accused is tried and punished for alleged criminal activity, not a specific proceeding against an accused, and the statute of limitations is tolled when an accused acts to purposely avoid being prosecuted for any offense.”

While he noted the absence of prior Ohio case law interpreting the disputed statutory language, Justice O’Donnell cited decisions of three different U.S. circuit courts of appeals interpreting a similar federal statute, all of which he said applied a general definition of the term “prosecution.” He wrote: “These courts have explained that Section 1073, which criminalizes crossing state lines with the intent to avoid prosecution, does not require the existence of a pending prosecution, but rather ‘[i]t is sufficient if the fleeing felon is ‘subject to prosecution.’”

“Notably, R.C. 2901.13(G) contains no language suggesting that its application should be limited only to those cases where the accused sought to avoid a particular prosecution. Nor is there language suggesting a limitation to only those prosecutions that had been commenced before the accused absconded or to those cases where the state can prove that the accused intended to avoid prosecution for a specific crime. The lack of any qualifying or limiting language reveals the legislature’s intent to toll the statute of limitations with respect to all offenses during the time when an accused purposely avoids prosecution for any offense. Moreover, the manifest purpose of R.C. 2901.13(G) is to prevent the accused from benefitting from the statute of limitations when he or she has purposely acted to avoid being prosecuted, thereby causing the state to fail to commence a timely prosecution. Importantly, it is the actions of the accused in avoiding prosecution, not the actions of the state in commencing a prosecution, that triggers the tolling of the statute of limitations. Thus, the General Assembly did not intend to limit tolling to only those offenses that authorities knew about at the time the accused absconded while allowing the statute of limitations to run on undiscovered crimes.”

“ ... The legislature has mandated that the period of limitations shall not run during any time when the accused purposely avoids prosecution. The word ‘prosecution’ means the process of bringing those who commit crimes to justice, and in the context of the statute, that definition is not limited to the crimes of which the authorities are aware or which have been indicted. In this case, if Bess committed the alleged crimes against Theresa’s son, then he knew that when he fled, but his motivations in fleeing the jurisdiction are known only to him. The General Assembly, however, did not intend to require the state to prove the accused’s specific intent in absconding, nor did it intend to toll the statute of limitations as to crimes known to the state but not toll it as to crimes unknown to the state. ... Because the court of appeals concluded that the statute of limitations had expired in this case notwithstanding Bess’s conduct in avoiding prosecution, that judgment is reversed and the cause is remanded to the trial court for further proceedings.”

Justice O’Donnell’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, stating that in her view the majority’s broad reading of R.C. 2901.13(G) violates the “rule of lenity” set forth in R.C. 2901.04(A), which requires that when courts interpret criminal statutes, the language chosen by the legislature must be strictly construed against the state and liberally construed in favor of defendants.

In this case, she wrote: “R.C. 2901.13(G) tolls the statute of limitations when ‘the accused purposely avoids prosecution.’ The word ‘accused’ implies that the person already has been implicated in a crime by someone. The mental state of ‘purposely’ is defined in R.C. 2901.22(A): ‘A person acts purposely when it is his specific intention to cause a certain result ... ’. The statute of limitations also explains when a ‘prosecution’ begins: ‘A prosecution is commenced on the date an indictment is returned or an information filed, or on the date a lawful arrest without a warrant is made, or on the date a warrant, summons, citation, or other process is issued, whichever occurs first. ...’”

“This language chosen by the General Assembly comports with the position advanced by the defense: tolling occurs when a person avoids prosecution for specific charges. Although a case may be, and has been, made for the state’s alternative theory, I cannot subscribe to the idea that the limitations period is tolled for all crimes that an accused may have committed before the period that an accused avoids prosecution for a specific charge.”

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County Prosecutor.

David L. Doughten, 216.361.1112, for Larry Bess.

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