State v. Bess ( 2010 )

[Cite as State v. Bess, 126 Ohio St.3d 350, 2010-Ohio-3292.]
THE STATE OF OHIO, APPELLANT, v. BESS, APPELLEE.
[Cite as State v. Bess, 126 Ohio St.3d 350, 2010-Ohio-3292.]
While a person purposely avoids prosecution for a crime, R.C. 2901.13(G) tolls
the statute of limitations for all crimes he or she committed.
(No. 2009-1196 — Submitted March 9, 2010 — Decided July 20, 2010.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 91429,
182 Ohio App.3d 364, 2009-Ohio-2254, 912 N.E.2d 1162.
__________________
SYLLABUS OF THE COURT
R.C. 2901.13(G) tolls the statute of limitations for all offenses committed by an
accused during the time when the accused purposely avoids prosecution,
regardless of whether an indictment has been returned or whether
underlying criminal activity has been discovered.
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O’DONNELL, J.
{¶ 1} The state of Ohio appeals from a judgment of the Eighth District
Court of Appeals affirming the trial court’s dismissal of an indictment against
Larry Bess as barred by the statute of limitations. The issue presented here
concerns whether R.C. 2901.13(G), which provides that the statute of limitations
shall not run during any time when the accused purposely avoids prosecution,
tolls the limitations period for all offenses the accused committed, or whether it
applies only to those offenses for which an indictment has been returned or
underlying criminal activity has been discovered before the accused absconds.
{¶ 2} Nothing in this statute limits its application to only those crimes
that had been discovered at the time the accused avoided prosecution. Rather,
R.C. 2901.13(G) tolls the statute of limitations for all offenses committed by an
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accused during the time when the accused purposely avoids prosecution for any
offense. Accordingly, the judgment of the court of appeals is reversed, and the
indictment is reinstated.
Facts and Procedural History
{¶ 3} 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. They lived at the Sunrise Cove Condominiums
in North Royalton, where Bess began sexually abusing Theresa’s daughter. The
abuse continued until February 1989, when the daughter revealed it to a school
counselor, who then reported the abuse to law-enforcement personnel and
children’s services.
{¶ 4} Bess also allegedly sexually abused Theresa’s son during this same
time period, but when Detective Allen Napier of the North Royalton Police
Department interviewed him as part of the investigation of his sister’s claims, he
said that his sister had lied, and he denied having been sexually abused by Bess.
{¶ 5} When Bess became aware of the investigation, he began making
plans to change his identity and leave town. He told Theresa that he planned to
leave and assume a new identity because he did not believe that he could defend
himself against her daughter’s allegations and did not want to go to jail.
{¶ 6} Bess and Theresa sold their home in North Royalton and split the
proceeds. Bess then purchased a van, loaded his belongings, and left. When
asked why she had not told authorities about Bess’s plans to abscond, Theresa
testified, “He hadn’t been indicted or — you know. Nobody asked.” She did not
try to stop him from leaving, because she did not believe that he had sexually
abused her daughter.
{¶ 7} On November 2, 1989, after Bess left the jurisdiction, a Cuyahoga
County grand jury indicted him on three counts of rape and seven counts of gross
sexual imposition in connection with the abuse of Theresa’s daughter. The
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Cuyahoga County Court of Common Pleas issued a capias for his arrest on
November 27, 1989, when he failed to appear in court. Bess successfully
concealed his identity and his whereabouts until March 5, 2007, when the FBI
arrested him in Bogart, Georgia, where he had been living under an alias of
Norman E. Weatherby.
{¶ 8} Following Bess’s apprehension, Detective David Sword of the
North Royalton Police Department began looking for witnesses in the case. He
met with Theresa’s son, who eventually revealed that Bess had sexually abused
him from 1982 to 1989.
{¶ 9} Based on his statements, the state obtained a second indictment
against Bess, charging him with six counts of rape, two counts of gross sexual
imposition, and one count each of attempted rape and complicity in the
commission of rape.
{¶ 10} The trial court tried Bess for the offenses committed against
Theresa’s daughter, which were not time-barred because he had purposely
avoided that prosecution, and a jury subsequently found him guilty of those
charges. The court of appeals affirmed. See State v. Bess, Cuyahoga App. No.
91560, 2009-Ohio-2032.
{¶ 11} Bess moved to dismiss the indictment that charged crimes against
Theresa’s son, arguing that the six-year statute of limitations established by
former R.C. 2901.13(A)(1)1 had expired. The state objected, contending that R.C.
2901.13(G)2 tolled the statute of limitations during the time when Bess had
1. In 1998, the General Assembly enacted Sub.H.B. No. 49, effective 1999, which amended R.C.
2901.13(A) to increase the statute of limitations for the offenses of rape and gross sexual
imposition to 20 years. 147 Ohio Laws, Part I, 299-300.
2. The version of R.C. 2901.13(G) in effect at the time that Bess allegedly committed the crimes
and at the time that the statute of limitations would have expired if not tolled provided: “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.” Am.Sub.H.B. No. 511, 134 Ohio Laws,
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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.
{¶ 12} On appeal, the court of appeals affirmed the judgment of the trial
court. Relying on State v. McGraw (June 16, 1994), Cuyahoga App. No. 65202,
the author of the appellate court opinion3 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.
{¶ 13} The state appealed, and we agreed to address the following
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.”
{¶ 14} The state contends that R.C. 2901.13(G) tolls the statute of
limitations for “any and all prosecutions against an accused who purposely avoids
prosecution,” noting that this statute contains no language that expressly limits
tolling to those prosecutions that the accused specifically intended to avoid.
According to the state, the purpose of the statute of limitations is to discourage
inefficient or dilatory law enforcement, not to permit offenders to evade
responsibility for criminal conduct; thus, tolling should not apply when the
offender’s action causes the delay in prosecution.
Part II, 1866, 1896-1897. The General Assembly subsequently amended R.C. 2901.13(G) to
incorporate gender-neutral language.
3. The author’s opinion in the court of appeals did not receive a second vote. A second judge
concurred in judgment only and a third judge on the panel dissented.
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{¶ 15} Bess, on the other hand, asserts that R.C. 2901.13(G) tolls the
statute of limitations only when the evidence shows that “the accused left the
jurisdiction purposefully to avoid the offense charged.” He maintains that both
the rule of lenity, which requires criminal statutes to be strictly construed against
the state and liberally construed in favor of the accused, and the purpose of a
statute of limitations in general – to protect the accused from having to defend
against stale charges – support his construction of the statute. Bess also notes that
Theresa’s son did not report abuse to anyone before Bess was apprehended, which
he now suggests shows that he could not have purposely avoided prosecution for
those charges.
{¶ 16} Thus, the issue is whether R.C. 2901.13(G) tolls the limitations
period of all crimes allegedly committed by an accused during the time the
accused purposefully avoids prosecution, or whether it applies only to the
offenses the accused specifically intended to avoid at the time the accused
absconded.
Law and Analysis
{¶ 17} R.C. 2901.13(G) provides: “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.”
{¶ 18} This case presents a question of statutory interpretation of the term
“prosecution” as used in R.C. 2901.13(G). As we explained in State v. Buehler,
113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, in construing statutes, “
‘our paramount concern is the legislative intent in enacting the statute.’ State ex
rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107,
¶ 21. Furthermore, ‘[i]n determining this intent, we first review the statutory
language, reading words and phrases in context and construing them according to
the rules of grammar and common usage.’ Id.” Buehler at ¶ 29. Thus, as the
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court stated in State v. Teamer (1998), 82 Ohio St.3d 490, 491, 696 N.E.2d 1049,
“[w]e must give effect to the words of a statute and may not modify an
unambiguous statute by deleting words used or inserting words not used.”
{¶ 19} As Bess argues, the word “prosecution” could refer to a particular
prosecution, that is, “[a] criminal proceeding in which an accused person is tried.”
Black’s Law Dictionary (8th Ed.2004) 1258. If “prosecution” is defined this way,
tolling occurs only when a person avoids prosecution for specific charges.
{¶ 20} The word “prosecution,” however, could also refer to the more
general process by which an accused is tried and punished for criminal activity.
See Thomas v. Peoria (C.A.7, 2009), 580 F.3d 633, 638-639 (“ ‘Prosecution’ * *
* just means law enforcement by public officers”); Merriam-Webster’s New
Collegiate Dictionary (11th Ed.2003) (defining “prosecution” to mean “the act or
process of prosecuting”). If this more general definition of “prosecution” was
intended by the General Assembly, then the statute encompasses all offenses
committed by the accused and tolls the crimes’ statute of limitations when an
accused leaves the state or conceals his or her identity or whereabouts with the
purpose of avoiding being prosecuted for any crime.
{¶ 21} 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.
{¶ 22} While this is a question of first impression in our court, federal
courts interpreting similar language in Section 1073, Title 18, U.S.Code, have
defined the words “to avoid prosecution” to mean “ ‘to avoid being prosecuted.’ ”
United States v. Frank (C.A.3, 1988), 864 F.2d 992, 1007, quoting United States
v. Bando (C.A.2, 1957), 244 F.2d 833, 843; see also Lupino v. United States
(C.A.8, 1959), 268 F.2d 799, 801; United States v. McKinney (D.Md.1992) 785 F.
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Supp. 1214, 1218. 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.’ ” Bando, 244 F.2d at 843. Cf. State v.
Gleason (Iowa 1988), 431 N.W.2d 363, 364 (defining unlawful flight “to avoid
prosecution” in an Iowa statute to mean flight “which was to prevent even the
occurrence of prosecution”).
{¶ 23} Notably, R.C. 2901.13(G) contains no language suggesting that its
application should be limited only to those cases when 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 when 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.
{¶ 24} Moreover, the manifest purpose of R.C. 2901.13(G) is to prevent
the accused from benefiting 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.
{¶ 25} Our construction of R.C. 2901.13(G) accords with the General
Assembly’s intent in enacting the statute of limitations in R.C. 2901.13(A). As we
explained in State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co.,
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L.P.A. (1999), 85 Ohio St.3d 582, 709 N.E.2d 1192, the purpose of a statute of
limitations is “to discourage inefficient or dilatory law enforcement rather than to
give offenders the chance to avoid criminal responsibility for their conduct.” Id.
at 586, citing State v. Hensley (1991), 59 Ohio St.3d 136, 138, 571 N.E.2d 711. A
statute of limitations “ ‘protect[s] 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., quoting Toussie v. United States (1970), 397 U.S. 112, 114-
115, 90 S.Ct. 858, 25 L.Ed.2d 156.
{¶ 26} These statutory purposes are not furthered, however, when the
accused purposely avoids prosecution, because it is the conduct of the accused,
not a lack of diligence on the part of the state, that causes the delay in the
prosecution. Thus, an accused who purposefully avoids prosecution cannot
complain of prejudice resulting from the failure of the state to promptly
commence the prosecution or from the unavailability of evidence as a result of the
passage of time. Just as the statute of limitations creates an incentive for the
prompt investigation of suspected criminal activity, tolling of the limitations
period during any time when the accused purposely avoids prosecution reduces
the incentive for the accused to abscond from justice.
{¶ 27} Federal caselaw construing Section 3290, Title 18, U.S.Code, the
federal tolling statute, provides further support for our interpretation of R.C.
2901.13(G). We recognize that Section 3290, which provides that “[n]o statute of
limitations shall extend to any person fleeing from justice,” is phrased differently
from R.C. 2901.13(G). However, federal courts hold that Section 3290 tolls the
federal statute of limitations when “the defendant concealed himself with the
intent to avoid prosecution.” (Emphasis added.) United States v. Greever (C.A.6,
1998), 134 F.3d 777, 780; see also Streep v. United States (1895), 160 U.S. 128,
133, 16 S.Ct. 244, 40 L.Ed. 365 (“In order to constitute a fleeing from justice, * *
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* [i]t is sufficient that there is a flight with the intention of avoiding being
prosecuted, whether a prosecution has or has not been actually begun”). Thus,
because Section 3290 is substantively equivalent to R.C. 2901.13(G), federal
caselaw analyzing Section 3290 provides persuasive authority in construing R.C.
2901.13(G).
{¶ 28} Federal appellate courts have held that Section 3290 tolls the
statute of limitations for all federal crimes during the time of a person’s flight
from justice, even if the person intended to avoid prosecution only on unrelated
state or federal crimes. The Tenth Circuit Court of Appeals has explained that
“the fact that appellee was fleeing prosecution from unrelated state crimes offers
him no assistance in his attempt to take advantage of the federal statute of
limitations. Appellee was fleeing justice – be it state or federal – and thereby
triggered the tolling provision of § 3290; he cannot now have the privilege of the
federal statute of limitations.” United States v. Morgan (C.A.10, 1991), 922 F.2d
1495, 1499. See also United States v. Hoffman (C.A.6, 1997), 124 F.3d 200(Table), 1997 WL 476513 (holding that the accused’s flight to avoid prosecution
on state child-abuse charges in California tolled the statute of limitations for a
federal tax offense); United States v. Rivera-Ventura (C.A.2, 1995), 72 F.3d 277,
283 (“when a defendant has been indicted by a federal grand jury in one district
and is unaware of that indictment, his flight to avoid prosecution in a different
federal district under an unrelated federal indictment of which he is aware tolls
the running of the statute on the charges of which he is unaware”).
{¶ 29} Federal courts thus do not require a specific intent to avoid a
particular prosecution for Section 3290 to toll the statute of limitations. Rather, as
the Seventh Circuit Court of Appeals stated in United States v. Marshall (C.A.7,
1988), 856 F.2d 896, 900, “[t]he tolling statute reflects the congressional belief
that where the defendant impedes the discovery and prosecution of his criminal
conduct by ‘fleeing from justice,’ his right to avoid prosecution for distant
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offenses is diminished while the government's need for additional discovery time
is strengthened.”
{¶ 30} For these reasons, we hold that R.C. 2901.13(G) tolls the statute of
limitations for all offenses committed by an accused during the time when the
accused purposely avoids prosecution for any offense.
Conclusion
{¶ 31} 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 for which the accused has 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. If we interpreted the statute otherwise, an accused would
benefit from absconding from prosecution of crimes unknown to the state. This
would be an illogical interpretation of the statute.
{¶ 32} Thus, R.C. 2901.13(G) tolls the statute of limitations for all
offenses committed by an accused during the time when the accused purposely
avoids prosecution for any offense, regardless of whether an indictment has been
returned or whether underlying criminal activity has been discovered. 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.
Judgment accordingly.
LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur.
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PFEIFER and LANZINGER, JJ., dissent.
BROWN, C.J., not participating.
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LANZINGER, J., dissenting.
{¶ 33} I dissent because the majority’s broad interpretation of R.C.
2901.13(G) violates the rule of lenity set forth in R.C. 2901.04(A): “Except as
otherwise provided in division (C) or (D) of this section, sections of the Revised
Code defining offenses or penalties shall be strictly construed against the state,
and liberally construed in favor of the accused.”
{¶ 34} The majority opinion frankly admits: “As Bess argues, the word
‘prosecution’ could refer to a particular prosecution, that is, ‘[a] criminal
proceeding in which an accused person is tried.’ Black’s Law Dictionary (8th
Ed.2004) 1258. If ‘prosecution’ is defined this way, tolling occurs only when a
person avoids prosecution for specific charges.” (Emphasis added.) Majority
opinion at ¶ 19. Yet in spite of the fact that this is a reasonable construction of the
statute, the majority continues by adopting the more favorable position for the
state—that is, the general fugitive-from-justice interpretation that applies to a
federal statute, Section 1073, Title 18, U.S.Code.
{¶ 35} In enacting Section 1073, Title 18, U.S.Code, Congress elected to
provide a number of different instances in which an alleged offender is deemed to
be a fugitive from justice and may be prosecuted for fleeing. The language used
in the federal statute suggests that Congress wanted the statute to be interpreted
broadly, which it since has been. See United States v. Frank (C.A.3, 1988), 864
F.2d 992, 1007.
{¶ 36} But 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
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his specific intention to cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is his specific intention to engage in conduct of
that nature.” 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. A prosecution is not commenced by the return 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, unless reasonable diligence is
exercised to execute the same.” R.C. 2901.13(E). The tolling of the statute of
limitations therefore begins when an alleged offender purposely flees the
jurisdiction to avoid a particular indictment or information.
{¶ 37} The 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.
{¶ 38} Bess was convicted of three counts of rape and two counts of gross
sexual imposition as a result of his stepdaughter’s accusations that were made in
1989. State v. Bess, 8th Dist. No. 91560, 2009-Ohio-2032. He purposely avoided
that prosecution. When Bess left, there was no thought of an investigation into
possible crimes against his stepson. The stepson had been interviewed and had
denied even the possibility that his sister’s accusations were true.
{¶ 39} Interpreting R.C. 2901.13(G) as suggested would not mean that an
indictment or information would need to be filed against an accused before the
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statute of limitations would be tolled. The accused would need only know that an
investigation is taking place or is likely to take place and that by leaving the
jurisdiction, he or she is avoiding prosecution for that specific crime.
{¶ 40} Bess’s absence from Ohio never prevented or interfered with an
investigation from proceeding on this matter, for there had been no accusation
relating to crimes against his stepson. Bess could not have purposely avoided
prosecution for alleged crimes that were unknown to authorities.
{¶ 41} A prosecution against a person based on evidence that is obtained
almost 20 years after the alleged crime was committed is exactly the kind of
prosecution the statute of limitations is designed to bar. Toussie v. United States
(1970), 397 U.S. 112, 114-115, 90 S.Ct. 858, 25 L.Ed.2d 156 (a statute of
limitations “protect[s] individuals from having to defend themselves against
charges when the basic facts may have become obscured by the passage of time”).
{¶ 42} R.C. 2901.13(G) cannot toll the statute of limitations for a
prosecution that has not yet been commenced against an accused. I respectfully
dissent.
PFEIFER, J., concurs in the foregoing opinion.
__________________
William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan
Regas, Assistant Prosecuting Attorney, for appellant.
David L. Doughten, for appellee.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
and Brandon J. Lester, Deputy Solicitor, urging reversal for amicus curiae Ohio
Attorney General.
Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant
Public Defender, urging affirmance for amicus curiae Ohio Public Defender.
______________________
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