THE STATE OF OHIO, APPELLEE, v. CLIMACO, CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI COMPANY, L.P.A., APPELLANT.
No. 98-616
SUPREME COURT OF OHIO
June 2, 1999
85 Ohio St.3d 582 | 1999-Ohio-408
APPEAL from the Court of Appeals for Franklin County, No. 97APA03-429.
(No. 98-616—Submitted February 23, 1999—Decided June 2, 1999.)
{¶ 1} In early February 1994, as a result of press scrutiny, the Attorney General’s Office began investigating five lobby groups for failing to comply with the requirements of
{¶ 3} A few days after the newspaper article and telephone call, Kenneth Seminatore, a principal partner at Climaco, sent a letter to Sherman stating that according to past practices and his interpretation of the reporting requirements, he felt that there was no need to report the honoraria. However, he explained that if his interpretation was incorrect, he would gladly amend the statements, as he had no intention of evading the reporting requirements.
{¶ 4} In a letter dated February 28, 1994, Sherman apologized to Seminatore for any confusion caused by earlier discussions he had had with an associate of the Climaco law firm but stated that he believed the honoraria must be reported.
{¶ 5} Seminatore responded to Sherman’s letter on March 11, 1994. In his letter, Seminatore wrote, “While we have an honest disagreement about your interpretation * * *, my desire is to err on the side of disclosure.” Seminatore included an amended updated registration statement for the May through August 1993 reporting period. This letter was followed by another letter from Seminatore dated March 22, 1994, which included amended registration statements covering January through April for the years 1992 and 1993 and September through December for the year 1993. Seminatore was not alone in filing amended statements. In fact, after the first news stories were reported, at least ten groups
{¶ 6} Meanwhile, on March 15, 1994, the Attorney General issued his report regarding the investigation of the updated registration statements filed by the five groups referred to him in February 1994. Climaco was not one of the groups investigated. In his report, the Attorney General concluded that violations of the reporting laws might have been committed by some of the groups. He reported his findings to the Franklin County Prosecutor.
{¶ 7} In June 1994, the Franklin County Prosecutor appointed a special prosecutor, James Meeks, to investigate the payment, receipt, and reporting of honoraria. Meeks issued his report on December 21, 1994. Although Meeks focused in large part on the conduct of Ohio legislators, he also scrutinized Tipps’s dinner parties and found no illegalities on Climaco’s part. The investigation appeared over.
{¶ 8} However, on February 9, 1995, The Columbus Dispatch carried another article about the honorarium probe. The article accused Franklin County Prosecuting Attorney Michael Miller of delaying the nearly year-old probe into allegations that two other groups (not Climaco) had violated the state’s lobbyist law by failing to report payments to legislators.
{¶ 9} According to a newspaper report, on February 24, 1995, JLEC sent the instant matter to the Franklin County Prosecutor. A grand jury eventually investigated the matter. On August 25, 1995, Seminatore and Climaco filed a motion to quash grand jury subpoenas, arguing in part that the statute of limitations had expired.
{¶ 10} On February 1, 1996, the Franklin County Prosecutor filed indictments against Seminatore and Climaco for two counts of falsification, violations of
{¶ 11} Seminatore and Climaco filed several motions to dismiss, raising, inter alia, issues of statute of limitations, lack of jurisdiction, and selective prosecution. After a hearing, all motions were denied. In February 1997, Climaco pleaded no contest to two counts of failing to file accurate updated registration statements, in violation of
{¶ 12} The cause is now before this court upon the allowance of a discretionary appeal.
Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellee.
Chester, Willcox & Saxbe and J. Craig Wright; Climaco, Climaco, Lefkowitz & Garofoli Co., L.P.A., John R. Climaco, Thomas M. Wilson, Michael P. Maloney and John F. Corrigan, for appellant.
FRANCIS E. SWEENEY, SR., J.
{¶ 13} We are asked to determine whether the statute of limitations in
{¶ 14} The February 1, 1996 indictment alleged that appellant knowingly made false statements in violation of
{¶ 15}
“(A) Except as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed:
“ * * *
“(2) for a misdemeanor other than a minor misdemeanor, two years;
“ * * *
“(E) A prosecution is commenced on the date an indictment is returned * * *.
“(F) The period of limitation shall not run during any time when the corpus delicti remains undiscovered.” 134 Ohio Laws, Part II, 1866, 1896-1897.
{¶ 16} Appellant contends that the plain language of
{¶ 17} The primary purpose of a criminal statute of limitations is to limit exposure to prosecution to a certain fixed period of time following the occurrence of those acts the General Assembly has decided to punish by criminal sanctions. Toussie v. United States (1970), 397 U.S. 112, 114-115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161. This “limitation is designed to protect 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. Additionally, such a time limit has the salutary effect of encouraging law enforcement officials to promptly investigate suspected criminal activity. Id. We recognized these purposes in Hensley, 59 Ohio St.3d at 138, 571 N.E.2d at 714, where we found that the intent of
{¶ 18} We also consider the rule of statutory construction stated in
{¶ 19} If we were to apply subsection (F) as urged by the state, thereby affording it two years from the discovery of the offense to begin prosecution, the purposes and principles governing criminal statutes of limitations would be defeated. This is glaringly evident here, considering the facts produced in the record.
{¶ 20} In February 1994, the issue of the honoraria at Tipps’s dinner parties was receiving so much attention that it was reported in the newspapers. Yet it took four months for the county prosecutor to initiate an investigation into the matter and appoint a special prosecutor. The special prosecutor did not issue a report until December 1994.
{¶ 21} After reviewing the special prosecutor’s report, the county prosecutor publicly stated that it encompassed the investigation of all parties—whether legislators or lobbyists—involved in the honorarium issues that had been brought to his attention. No further action was taken until the JLEC wrote to the prosecutor at the end of February 1995, requesting that the matter be pursued.
{¶ 22} Contemporaneously with the media attention in February 1994, appellant questioned whether its statements needed to be amended. After appellant was advised by Sherman that Sherman believed that appellant’s interpretation was
{¶ 23} Moreover, to construe subsection (F) as controlling would render subsection (A)(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 otherwise provided” contained within subsection (A) clearly does not contemplate such an expansive reading of the statute.
{¶ 24} Additionally, the state’s interpretation could subject a person to criminal liability indefinitely with virtually no time limit, and this would frustrate the legislative intent on criminal statutes of limitations. We will not endorse such a broad interpretation of subsection (F). See Hensley, 59 Ohio St.3d at 139, 571 N.E.2d at 714.
{¶ 25} Finally, the state misconstrues our Hensley decision. In Hensley, we recognized the unique nature of child sex abuse cases and the need to toll the statute
{¶ 26} Thus, we find that the statute of limitations set forth in
{¶ 27} The judgment of the court of appeals is reversed.
Judgment reversed.
DOUGLAS, RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., dissenting.
{¶ 28}
{¶ 29} In setting forth general periods of limitation for different categories of criminal conduct, e.g., minor misdemeanors, other misdemeanors, felonies,
{¶ 30} The statute of limitations set forth in
{¶ 31} Consequently, this court is constitutionally mandated to interpret and apply the statute of limitations in effect in this state at the time of the criminal acts allegedly committed by the appellant. It is of no relevance that we, as individual judges, may disagree with its provisions. The General Assembly has balanced the right of the state to prosecute and the right of the defendant in not being required to defend against stale claims. It has determined that subsection (F) applies to all crimes in which the corpus delicti is discovered subsequent to the commission of the criminal conduct itself. We have no authority to override its establishment of that balance in the absence of a constitutional violation.
{¶ 32} The majority observes that courts in other jurisdictions have recognized that statutes of limitations “normally begin to run when the crime is complete.” Of course, in Ohio too, pursuant to
{¶ 33} The majority recognizes that long-established precedent from this court defines the term “corpus delicti” as being composed of two elements: (1) the act itself and (2) the criminal agency of the act. See State v. Edwards (1976), 49 Ohio St.2d 31, 34, 3 O.O.3d 18, 20, 358 N.E.2d 1051, 1055, citing State v. Maranda (1916), 94 Ohio St. 364, 114 N.E. 1038. We more recently have incorporated our prior definition of “corpus delicti” in construing
{¶ 34} Unless overruled, Hensley provides the precedent by which this case should be decided. The majority attempts to distinguish the case at bar by virtue of the fact that criminal sexual offenses against children are reprehensible crimes, often not easily discovered or revealed. However, all crime is reprehensible, and many types of crimes are not easily discovered. All crime is subject to punishment within the guidelines established by the General Assembly.
{¶ 35} Interpretation of a statute of limitations should not be dependent upon judicial reaction to the heinousness of the crime involved, or based on the innocence of, or effect of the crime on, particular victims. No one, neither criminal defendants, prosecutors, nor the judiciary, is well served when determination of periods of limitations is uncertain. How will it be determined in the future whether the approach employed by the majority herein is applicable in individual criminal cases, or whether the Hensley doctrine is? Is the applicability of subsection (F) to be determined on a crime-by-crime basis?
{¶ 36} The majority reads subsections (A)(2) and (F) as being largely irreconcilable. It argues that enforcement of subsection (F) as written “could subject a person to criminal liability indefinitely with virtually no time limit, and this would frustrate the legislative intent on criminal statutes of limitations.” This is not necessarily so. In most cases, the existence of a crime is discovered soon after or during its commission, and the criminal nature of the act is immediately apparent upon discovery that the act has occurred. For example, when one observes the running of a red light or discovers a break-in, it is apparent both that an act has been committed and that the act is criminal in nature. In the normal case, the corpus delicti is thus discovered contemporaneously with discovery of the criminal conduct itself. That is enough to begin the running of the statutory period.
{¶ 37} It is true that the rule established by subsection (F) does mean that, where the corpus delicti of a crime is not discovered for many years after the criminal conduct itself, the criminal actor could potentially be prosecuted many years after the criminal act was committed. However, this result is inherent in the language of subsection (F) itself. The General Assembly could have included, but did not include, an ultimate limit of time within which prosecutions must be brought in cases where the corpus delicti remains undiscovered for long periods of years. In the guise of refusing to broadly interpret subsection (F) the majority has, in fact, read it out of the statutory scheme.
{¶ 38} The majority opines that Hensley was based on a recognition that it was necessary to apply subsection (F) in child-abuse cases because it is inevitable that “many crimes with child victims would be discovered only after the statute of limitations had run.” (Emphasis added.) This characterization is logically flawed. Subsection (F) is not designed to apply after the statute has expired. Cf.
{¶ 39} Similarly, the majority states that, in the case before us, “we do not need to resort to subsection (F) because the alleged offenses were discovered within the statute of limitations of
{¶ 40} The majority is critical of the state for perceived dawdling in coordinating its criminal investigation and preparing indictments. However, absent a constitutional violation, it is simply not a concern of this court whether it took one month, or four months, or twelve months for the state to initiate an investigation and appoint a special prosecutor after discovery of the reports’ falsities. Nor is it appropriate for us to inquire whether that prosecutor might have issued a report sooner than he did.
{¶ 41} Our duty is limited to determining the period within which an indictment could legally be filed, and then determining whether the prosecution acted within that time. That it is conceivable that the state could have indicted earlier in the statutory period of limitation is irrelevant so long as it did, indeed, indict within the statute of limitations.
{¶ 42} In the case at bar, application of subsection (F), in conjunction with subsection (A)(2), resulted in expiration of the period of limitation two years from the date the discovery was made that the reports filed by the defendants contained
{¶ 43} Finally, an examination of
{¶ 44} As does the majority, I reject the contention that
{¶ 45} Because fraud is not an element of the offense proscribed by
{¶ 46} For the foregoing reasons, I would affirm the judgment of the court of appeals.
COOK, J., concurs in the foregoing dissenting opinion.