State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A.

709 N.E.2d 1192, 85 Ohio St. 3d 582
Ohio Supreme Court·Decided June 2, 1999·No. No. 98-616·Published·Cited by 49 cases

Opinions

Francis E. Sweeney, Sr., J.

We are asked to determine whether the statute of limitations in R.C. 2901.13 barred appellant’s prosecution for falsification. For the following reasons, we find that it did. Accordingly, we reverse the court of appeals.

The February 1, 1996 indictment alleged that appellant knowingly made false statements in violation of R.C. 2921.13 when it filed its June and October 1993 “Employer of Legislative Agent Updated Registration Statements.” R.C. 2921.13(A)(7) states, “No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies: * * * The statement is in -writing on or in connection with a report or return that is required or authorized by law.” A violation of R.C. 2921.13(A)(7) is a first-degree misdemeanor.

R.C. 2901.13 sets forth the statute of limitations for criminal prosecutions. It stated:

“(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.

Appellant contends that the plain language of R.C. 2901.13(A)(2), now (A)(1)(b), requires a prosecution to be commenced within two years after the offenses were committed. Because the alleged acts of falsification occurred in June and October 1993, appellant asserts that the statute of limitations expired in June and October 1995.2 However, the state contends that because the offenses were not [586] discovered until February 1994, the tolling provision of subsection (F) applies, and, therefore, the state had until February 1996 to bring an indictment. The state relies on the phrase in subsection (A) “[e]xcept as otherwise provided in this section” in order to reach the tolling provision of subsection (F). The state also relies upon our reaffirmation of the definition of “corpus delicti” in State v. Hensley (1991), 59 Ohio St.3d 136, 138, 571 N.E.2d 711, 713, i.e., corpus delicti is the body or substance of the crime and is made up of two elements: (1) the act itself and (2) the criminal agency of the act. Using this definition, the state asserts that although the offenses were committed .in June and October 1993, the criminal agency of the acts did not come to surface until the February 1994 sequences of events. In light of the salutary purposes of a criminal statute of limitations, as well as other policies and principles, we decline to adopt the state’s position.

The primary purpose of a ciiminal 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 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. We stated, “ ‘The rationale for limiting criminal prosecutions is that they should be based on reasonably fresh, and therefore more trustworthy evidence,’ ” quoting the Ohio Legislative Service Commission comment to R.C. 2901.13.

We also consider the rule of statutory construction stated in R.C. 2901.04(B) (“Rules of criminal procedure and sections of the Revised Code providing for criminal procedure shall be construed so as to effect the fair, impartial, speedy, and sure administration of justice”). Additionally, it has long been held that statutes of limitations normally begin to run when the crime is complete. Toussie, 397 U.S. at 115, 90 S.Ct. at 860, 25 L.Ed.2d at 161, citing Pendergast v. United States (1943), 317 U.S. 412, 418, 63 S.Ct. 268, 271, 87 L.Ed. 368, 372, and United States v. Irvine (1878), 98 U.S. 450, 452, 25 L.Ed. 193, 194. In fact, the General Assembly has so stated in R.C. 2901.13(A)(2): “Except as otherwise [587] provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed.” Finally, we note that the state bears the burden of proving that the offense was committed within the appropriate statute of limitations. State v. Young (1981), 2 Ohio App.3d 155, 2 OBR 171, 440 N.E.2d 1379.

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.

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.

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.

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 incorrect, appellant filed an amended statement. Then appellant, on its own, reviewed other filings and amended three other statements as well. Amended reports are clearly contemplated by the reporting statutes. However, notwithstanding that, we agree with appellant that the state had everything it needed to indict for falsification, at the very latest, on March 22, 1994, when the second amended reports were sent. Thus, we reject, as incredible, the state’s claim that extraordinary amounts of work accounted for the delays. In fact, the record suggests just the opposite, ie., that not much was being done to investigate this matter.

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State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A., 709 N.E.2d 1192, 85 Ohio St. 3d 582 (Ohio 1999).

709 N.E.2d 1192 (State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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