THE STATE OF OHIO, APPELLEE, v. COOK, APPELLANT.
No. 2009-2122
Supreme Court of Ohio
Submitted September 29, 2010—Decided December 28, 2010.
128 Ohio St.3d 120, 2010-Ohio-6305
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, 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.
{¶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, 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
{¶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), 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
{¶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
{¶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), 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. 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
{¶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} “* * *”
{¶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 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.
{¶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
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
{¶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 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(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,
{¶39} The state argues that
{¶40}
{¶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 pari 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), 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
{¶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 “[w]hether
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
{¶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 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
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 [
{¶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, 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
{¶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
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.
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.