State v. BessState v. Bess
Lead Opinion
{¶ 2} Nothing in this statute limits its application to only those crimes that had been discovered at the time the accused avoided prosecution. Rather,
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 Cuyahoga
{¶ 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,
{¶ 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
{¶ 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,
{¶ 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
{¶ 14} The state contends that
{¶ 15} Bess, on the other hand, asserts that
{¶ 16} Thus, the issue is whether
Law and Analysis
{¶ 17}
{¶ 18} This case presents a question of statutory interpretation of the term “prosecution” as used in
{¶ 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),
{¶ 21} The context in which the word “prosecution” is used in
{¶ 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),
{¶ 23} Notably,
{¶ 24} Moreover, the manifest purpose of
{¶ 25} Our construction of
{¶ 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
{¶ 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),
{¶ 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),
{¶ 30} For these reasons, we hold that
{¶ 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,
Judgment accordingly.
Notes
. 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.
. The version of
. 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.
Dissenting Opinion
dissenting.
{¶ 33} I dissent because the majority’s broad interpretation of
{¶ 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,
{¶ 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),
{¶ 36} But
{¶ 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,
{¶ 39} Interpreting
{¶ 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),
{¶ 42}