State v. Milton

[Cite as State v. Milton, 2018-Ohio-4999.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27819
:
v. : Trial Court Case No. 2015-CR-3678
:
KYRA N. MILTON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 14th day of December, 2018.
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MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020 and TRAVIS DUNNINGTON, Atty. Reg. No.
0096519, P.O. Box 10126, Dayton, Ohio 45402
Attorneys for Defendant-Appellant
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FROELICH, J.
{¶ 1} After the trial court denied her motion to dismiss, Kyra N. Milton pled no
contest to tampering with records (kept by a governmental entity) in violation of R.C.
2913.42(A)(2), a felony of the third degree. The trial court sentenced her to community
control sanctions. Milton appeals from her conviction, challenging the denial of her
motion to dismiss. For the following reasons, the trial court’s judgment will be reversed,
and Milton’s conviction will be vacated.
I. Factual and Procedural History
{¶ 2} According to the transcript of the hearing on Milton’s motion to dismiss, the
parties, in lieu of the presentation of witnesses, agreed to a stipulation of facts “for
purposes of both [the trial court’s] review and any other court’s, if necessary.” The
parties agreed that, if testimony were presented that day, it would establish the following
facts:
{¶ 3} On January 19, 2008, Kyra Milton took a driver’s license test for her sister,
Shanese Milton,1 who was unable to pass the test. Milton obtained a driver’s license for
Shanese, and Milton’s photograph was taken for the license. A few months later, in April
2008, Shanese had her own photograph taken for the driver’s license. Milton and
Shanese’s mother and some of their friends were aware of what had occurred.
{¶ 4} In 2009, both Milton and Shanese were charged with offenses in Miami
County for which they were required to speak with a probation officer for a presentence
investigation (PSI). The probation officer, Tom Sandy, pulled up Shanese’s driver’s
1Because the sisters share the same last name, we will refer to Kyra Milton as “Milton”
and to Shanese by her first name.
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license on Ohio Law Enforcement Gateway (OLEG) and discovered that there was an
issue regarding the license. Sandy spoke with both Milton and Shanese about the
license, and Sandy learned what the sisters had done in January 2008. At the time of
the May 25, 2017 hearing on the motion to dismiss, Sandy did not recall the event.
Defense counsel for Milton attempted to obtain records that would substantiate Milton
and Shanese’s version of events, but those records had been purged from the Miami
County system.
{¶ 5} In its decision overruling the motion to dismiss, the trial court further stated
that “[t]he parties agree that, on September 15, 2015, the Bureau of Motor Vehicles
learned of Defendant’s conduct and opened its case file to further investigate.”
{¶ 6} On April 1, 2016, Milton was indicted for tampering with records (kept by a
governmental entity), in violation of R.C. 2913.42(A)(2). That statute provides:
(A) No person, knowing the person has no privilege to do so, and with
purpose to defraud or knowing that the person is facilitating a fraud, shall
do any of the following:
(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing,
computer software, data, or record;
(2) Utter any writing or record, knowing it to have been tampered with as
provided in division (A)(1) of this section.
Because the record was kept by a governmental entity, the offense was a felony of the
third degree. R.C. 2913.42(B)(4).
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{¶ 7} On June 1, 2016,2 Milton filed a motion to dismiss the indictment, claiming
that the six-year statute of limitations had run. She argued that the statute of limitations
began to run in 2008 or 2009, when the Miami County Probation Department learned of
her conduct. After several continuances, mostly occasioned by repeated substitutions
of counsel for Milton, a hearing on the motion was held on May 25, 2017. Milton filed a
supplemental memorandum in support of her motion on June 9, 2017. Neither Milton’s
original motion nor her post-hearing supplemental memorandum mentioned the BMV’s
alleged discovery of her actions in September 2015. The State did not file a post-hearing
memorandum.
{¶ 8} On July 6, 2017, the trial court overruled Milton’s motion to dismiss. The
trial court noted that the statute of limitations for felony tampering with records is six years,
R.C. 2901.13(A)(1), but that, pursuant to R.C. 2901.13(G), the statute of limitations did
not begin to run until the corpus delicti was discovered. Distinguishing State v. Hensley,
59 Ohio St. 3d 136, 571 N.E.2d 711 (1991), which concerned the discovery of the corpus
delicti in a child sex abuse case, the trial court found that the corpus delicti in this case
was discovered, at the latest, in 2009, when Milton’s probation officer learned of Milton’s
conduct. The trial court thus concluded that the prosecution was brought outside of the
six-year statute of limitations in R.C. 2901.13(A)(1).
{¶ 9} The trial court, nevertheless, concluded that the prosecution was timely
under R.C. 2901.13(B)(1), which expands the statute of limitations for offenses involving
fraud. The court reasoned:
2
On May 25, 2016, the trial court scheduled a hearing on Milton’s motion to dismiss.
We infer that Milton made an oral motion to dismiss at a scheduling conference held on
May 24, 2016, followed by the June 1, 2016 written motion.
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In this case, there is no question that Defendant was charged with
an offense containing an element of fraud, of which the BMV was the
aggrieved party. (See Indictment, Apr. 1, 2016.) In addition, the parties
have stipulated that the BMV, the aggrieved party, learned of Defendant’s
conduct on September 15, 2015, after the six-year limitations period
expired. As such, the Court finds that the BMV, as the aggrieved party,
discovered the corpus delicti for purposes of R.C. 2901.13(G) on
September 15, 2015, after the statute of limitations expired. Accordingly,
pursuant to the exception contained in R.C. 2901.13(B)(1) and the Ohio
Supreme Court’s decision in State v. Cook, [128 Ohio St. 3d 120, 2010-
Ohio-6305, 942 N.E.2d 357,] the Court finds [the] state was afforded an
additional one-year period from the date on which the BMV discovered the
offense to bring this action against Defendant. The Court notes that the
probation officer’s discovery of the corpus delicti in 2009 did not trigger R.C.
2901.13(B)(1), first, because the officer is not an aggrieved party, and
secondly, because the statute of limitations had not expired at that time.
Thus, because an aggrieved party discovered the corpus delicti on
September 15, 2015, after the six-year limitations period expired, the
indictment issued on April 1, 2016 was timely issued within one year
pursuant to R.C. 2901.13(B)(1).
{¶ 10} Milton subsequently pled no contest to tampering with records, as charged.
The trial court sentenced her to community control sanctions. Milton appeals from the
trial court’s judgment.
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II. Timeliness of the Prosecution under R.C. 2901.13
{¶ 11} Milton’s sole assignment of error claims that the trial court erred in denying
her motion to dismiss.
{¶ 12} “[A] motion to dismiss ‘tests the sufficiency of the indictment [or complaint],
without regard to the quantity or quality of evidence that may be produced by either the
state or the defendant.’ ” State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 18 (2d Dist.),
quoting State v. Patterson, 63 Ohio App. 3d 91, 95, 577 N.E.2d 1165 (2d Dist.1989). We
review de novo a trial court’s decision on a motion to dismiss. Fields at ¶ 19.
{¶ 13} R.C. 2901.13, the criminal statute of limitations, provides, in relevant part3:
(A)(1) Except as provided in division (A)(2), (3), or (4) 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:
(a) For a felony, six years;
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(B) 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.
3 The parties have not addressed what version of R.C. 2901.13 applies to this case. At
the time of Milton’s conduct, R.C. 2901.13(G) was codified as R.C. 2901.13(F), and R.C.
2901.13(B)(1) was substantively R.C. 2901.13(B). Regardless, for purposes of this
appeal, there is no meaningful difference between the current and former versions of R.C.
2901.13.
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***
(G) The period of limitation shall not run during any time when the corpus
delicti remains undiscovered.
{¶ 14} “Generally, statutes of limitations begin to run when the crime is complete.”
State v. Swartz, 88 Ohio St. 3d 131, 133, 723 N.E.2d 1084 (2000), citing Toussie v. United
States, 397 U.S. 112, 115, 90 S. Ct. 858, 25 L. Ed. 2d 156 (1970). The stipulated facts
indicate that Milton engaged in the alleged criminal conduct on January 19, 2008, when
she applied for and received a temporary driver’s license under her sister’s name. Had
Milton’s conduct been discovered immediately, the statute of limitations would have
expired on January 19, 2014.
{¶ 15} However, under R.C. 2901.13(G), a criminal statute of limitations is tolled
until the corpus delicti of the offense is discovered. E.g., State v. Cook, 128 Ohio St. 3d
120, 2010-Ohio-6305, 942 N.E.2d 357, ¶ 23; Hensley, 59 Ohio St. 3d 136, 571 N.E.2d
711. “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.” Cook at paragraph
one of the syllabus, following Hensley at 138. The tolling provision of R.C. 2901.13(G)
applies to all offenses. Cook at ¶ 33. Thus, “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.” Id. at ¶ 33 and paragraph two
of the syllabus.
{¶ 16} Further, R.C. 2901.13(B)(1) provides the State one additional year “[w]hen
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” after the statue of limitations
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has run. See Cook at paragraph three of the syllabus. The Ohio Supreme Court gave,
as an example:
[I]f 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.
Cook at ¶ 49.
{¶ 17} The parties agree that the corpus delicti was discovered sometime in 2009,
when Tom Sandy, a probation officer, learned of Milton’s actions. Milton thus claims that
the statute of limitations began in 2009 and expired in 2015; Milton was indicted in 2016.
{¶ 18} The State contends that, in accordance with R.C. 2901.13(B)(1), the State
had one additional year from the time that the BMV, which the State identified as the
aggrieved “party,” discovered Milton’s fraud. The State asserts in its brief that the parties
agree that the BMV did not discover the corpus delicti of Milton’s offense until September
15, 2015. In her appellate brief, Milton appears to agree that the BMV learned of her
conduct in September 2015.
{¶ 19} The date of the BMV’s discovery of Milton’s conduct was not included in the
parties’ stipulation at the hearing on the motion to dismiss, and the record contains no
indication that the parties had agreed to this additional fact for purposes of the motion.
Moreover, there is nothing in the record to indicate that, before the trial court decided the
motion, the parties asked the trial court to “reopen” the hearing to allow for an additional
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stipulation and the court allowed an additional stipulation. Compare State v. Short, 2017-
Ohio-7200, __ N.E.3d __, ¶ 18 (2d Dist.) (parties’ agreement, made after a bench trial but
prior to the trial court’s ruling, to modify the trial stipulations was ineffective where the
parties did not ask for and receive permission from the trial court to reopen the case and
modify the stipulated facts). Based on the record before us, the probation officer learned
of Milton’s conduct in 2009, and she was indicted in April 2016; there is no evidence or
stipulation that explains the delay in the indictment or addresses the discovery of Milton’s
wrongful conduct by the BMV.
{¶ 20} “An appellate court is limited to reviewing the record, and will disregard
alleged facts that are not of record in the trial court.” (Citations omitted.) Chase
Manhattan Mtge. Corp. v. Locker, 2d Dist. Montgomery No. 19904, 2003-Ohio-6665, ¶
10. See also, e.g., Sullivan v. Willhoite, 2d Dist. Montgomery No. 27968, 2018-Ohio-4234,
¶ 11 (“Under well-established law, appellate courts are limited to the record before the
trial court and cannot consider documents or matters that are not in the record.”). When
reviewing a trial court’s decision on a motion to dismiss (or any other motion), we are
limited to the evidence that was before the trial court for that motion. See, e.g., State v.
VanNoy, 188 Ohio App. 3d 89, 2010-Ohio-2845, 934 N.E.3d 413, ¶ 7, fn. 1 (2d Dist.)
(appellate court could not consider trial testimony when reviewing suppression decisions);
State v. Davis, 2d Dist. Montgomery No. 22775, 2009-Ohio-2538, ¶ 3 (“we may consider
only the evidence presented at the suppression hearing in determining whether the trial
court properly overruled the motion to suppress”).
{¶ 21} Despite the parties’ apparent agreement at this appellate stage regarding
the BMV’s discovery of Milton’s conduct, the record does not reflect that the trial court
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had any evidence from which it could have concluded that the BMV discovered Milton’s
conduct on September 15, 2015, allegedly triggering the one-year extension for fraud
offenses in R.C. 2901.13(B)(1). Rather, based on the evidence before the trial court by
stipulation, the statute of limitations began to run in 2009 and expired in 2015, prior to
Milton’s indictment.
{¶ 22} The State suggested at oral argument that we should remand the matter to
the trial court to allow the parties to provide further information to the trial court about the
discovery of Milton’s actions. We disagree. At the motion to dismiss hearing, the State
bore the burden of proving that Milton’s offense was committed within the appropriate
statute of limitations. See State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli
Co., L.P.A., 85 Ohio St. 3d 582, 587, 709 N.E.2d 1192 (1999). Generally, if it is not on
the record, it did not happen.
{¶ 23} This is not placing form over substance. The record on appeal is the only
way for an appellate court to know what happened at a trial or a hearing and what it is to
review to determine if there were any error. E.g., Brenda C. See, Written in Stone? The
Record on Appeal and the Decision-Making Process, 40 Gonz.L.Rev. 157 (2004-2005).
It is the role of counsel to present evidence at evidentiary hearings to meet the party’s
burden of proof or persuasion. While a trial court may judicially notice certain facts, the
facts that a trial court may notice are limited. See Evid.R. 201(B). If a trial court could
make decisions on what it “knew” from non-evidentiary sources or on what was “meant”
or “intended” to have happened at an evidentiary hearing or trial, the trial court would
usurp the role of counsel to present his or her case. Similarly, if the appellate court
reviewed a trial court decision based on information outside of the original or timely and
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appropriately supplemented record, the appellate court would overstep its error-
correcting role and the appellate process would lose its legitimacy.
{¶ 24} Based on the record before us, the trial court erred in denying Milton’s
motion to dismiss since, based on that record, the statute of limitations expired in 2015,
prior to Milton’s indictment. Milton’s assignment of error is sustained.
III. Conclusion
{¶ 25} The trial court’s judgment will be reversed, and Milton’s conviction will be
vacated.
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DONOVAN, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck
Michael J. Scarpelli
Jon Paul Rion
Travis Dunnington
Hon. Gregory F. Singer