State v. CookState v. Cook
Lead Opinion
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
{¶ 2} We hold that the one-year limitation period in
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,
{¶ 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.
{¶ 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.
{¶ 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,
{¶ 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
{¶ 14}
{¶ 15} Cook moved to dismiss the tampering-with-records charge pursuant to the six-year statute of limitations for felonies in
{¶ 17} The court of appeals certified that a conflict existed between its decision and the decisions in State v. Mitchell (1992),
{¶ 18} This court determined that a conflict existed and ordered that the parties brief the following issue: “Whether
{¶ 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),
{¶ 20} Alternatively, Cook argues that
{¶ 21} The state argues that the tolling provision and one-year limitation period in
{¶ 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),
{¶ 24} Next we examine the general statute of limitations for criminal offenses found in
{¶ 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,
{¶ 32} “Generally, statutes of limitations begin to run when the crime is complete.” State v. Swartz (2000),
{¶ 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,
State v. Climaco
{¶ 34} Cook argues that pursuant to State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A.,
{¶ 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
{¶ 37} The present case can be distinguished because here, unlike in Climaeo, 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 Climaeo do not exist here. See id. at 586 (“the intent of
{¶ 38} Cook argues that even if the running of the statute of limitations was tolled until February 2004,
{¶ 39} The state argues that
{¶ 40}
{¶ 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,
{¶ 43} “The period of limitation shall not run during any time when the corpus delicti remains undiscovered.”
{¶ 44}
{¶ 45} “ ‘First, all statutes which relate to the same general subject matter must be read in pan materia. And, in reading such statutes in pari materia, and construing them together, this court must give such a reasonable construction as 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),
{¶ 46} Applying these principles, we hold that
{¶ 47}
{¶ 48} Reading these provisions in pari materia, a logical construction is that
{¶ 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
{¶ 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,
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
Answer to the Certified Question
{¶ 52} The question certified to this court was “[wjhether
Certified question answered and judgment affirmed.
Dissenting Opinion
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),
{¶ 54} The majority today nevertheless holds that
{¶ 55} Today’s holding directly contradicts established precedent. In 1999, this court expressly rejected the premise today adopted by the majority, as follows:
{¶ 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 Clima-co do not exist here.” The majority therefore “limit[s Climaco] to its facts.”
{¶ 58} I fear that the apt observation of Judge Patrick J. Schütz 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,
{¶ 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.
{¶ 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.,
{¶ 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,
{¶ 64} If Climaco misconstrued the legislative intent underlying
{¶ 65} The majority holds, and I agree, that subsection (B) of
{¶ 66} But the majority’s interpretation of
{¶ 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
{¶ 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
Notes
. {¶ a}
{¶ 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
. 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.
. While I have concerns about the wisdom, feasibility, and continued viability of the Galatis test for overruling eases, that test continues to be recognized in principle by a majority of this court. See,
Dissenting Opinion
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,