State v. Cook

[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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January Term, 2010

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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January Term, 2010

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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