State v. Hensley

2 Ohio App. Unrep. 59
CourtOhio Court of Appeals
DecidedMarch 19, 1990
DocketCase No. 11410
StatusPublished

This text of 2 Ohio App. Unrep. 59 (State v. Hensley) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hensley, 2 Ohio App. Unrep. 59 (Ohio Ct. App. 1990).

Opinion

WILSON, J.

After a bench trial, Richard Hensley was convicted of three counts of gross sexual imposition, R.C. 2907.05(A)(3), five counts of rape of a person under thirteen, R.C. 2907.02(A)(1)(b), and three counts of rape of a person under thirteen with force R.C. 2907.02(A)(1)(b) and 2907.02(A)(2). Hensley was sentenced to three concurrent two year terms of incarceration, consecutive to five concurrent terms of five to twenty-fiveyears,consecutivetothreeconcurrent life sentences, respectively. This matter is now before the court on Hensley's timely notice of appeal form said conviction. Hensley asserts six assignmentsof error, claiming that the judgment was against the manifest weight of the evidence, he was denied due process, several charges were barred by the statute of limitations, the trial court lacked venue over one count and should have granted his motionsfor severance and a bill of particulars. We will affirm in part and reverse in part.

During the time in question, Hensley lived in McMahan's Mobile Home Park in Dayton with his wife and son. He was employed by the trailer park as a maintenance man. The state alleges that from 1974 until 1987 Hensley molested six small children who lived in the trailer park. Each of the alleged victims was between four and ten years old at the time of the events, although some were adults by the time of the trial. Four were girls, while two were boys. The alleged sexual activities ranged from touching of erogenous zones to fellatio to one incident of anal intercourse. All but one of the purported crimes took place in either Hensley's trailer or the trailer parks' maintenance shed. The purported anal intercourse occurred in the men's shower at Crawford Campground in Clark County, Ohio. Hensley allegedly induced the children into having sexual relations by a combination of ice cream and threats against their families. In three instances, all involving the same boy, Hensley purportedly used force. Hensley denies having engaged in sexual activities with any of the children.

Hensley was originally indicted on two counts of gross sexual imposition involving one girl in 1987. However, further investigation uncovered more alleged victims. The indictment was amended several times until it finally consisted of fifteen counts of various sex offenses going back to 1974. One count was dismissed by the state when the complaining witness, now an adult living in another state with children of her own, failed to appear at trial. Hensley was found [60]*60not guilty on three counts of gross sexual imposition involving two children. He was found guilty of the remaining eleven counts and sentenced as reflected above.

For his first assignment of error, Hensley asserts that:

"The trial court erred in overruling appellant's motion to dismiss count four through fourteen of the indictment, as the statute of limitations had expired as to those counts."

As explained above, count fifteen was dismissed. Hensley was found not guilty of counts nine, thirteen, and fourteen. Therefore, we will addressHensley'sargumentasitpertains to counts four through eight and ten through twelve. These involve three counts of rape without force of Christopher Adams (counts four to six), two counts of rape without force of Samantha Adams (counts seven and eight), and three counts of rape with force of Patrick Dalton (counts ten to twelve).

All of the charges in the instant case are felonies. Subject to exceptions that will be discussed infra, the statute of limitations bars prosecution of a felony unless it is commenced within six years after the offense was committed. R.C. 2901.13 (A) (1). For purposes of this section, a prosecution is commenced when an indictment for the offense is returned. R.C. 2901.13(E). The first indictment that concerned alleged sexual activities with Christopher, Samantha, and Patrick was returned on June 17, 1988. Therefore, any alleged offense that occurredprior to June 16, 1982 is prima facie barred by the statute of limitations. The state has the burden of proving that any offense committed prior to that date falls into one of the enumerated exceptions to the statute of limitations. State v. Young (1981), 2 Ohio App. 3d 155.

Resolution of this issue is complicated by the fact that none of the indictments reflected specific dates that the offenses were to have occurred. Instead, the state chose to set forth ranges of dates. For example, each of the three counts involving the forcible rape of Patrick were alleged to have occurred between August 1, 1981 and December 31, 1986. Thus, in Patrick's case it is impossible to tell from the indictment alone whether the alleged offenses occurred before or after June 16, 1982. However, a careful examination of the record yields a more precise approximation of dates.

Patrick's testified that Hensley forcibly anally raped him at Crawford's Campground, which constituted count twelve, in late August or early September of 1986. T. 206. Count eleven alleges that Hensley forcibly committed fellatio on Patrick in the maintenance shed. Patrick testified that this occurred when he was eight or nine years old. T. 196. Since Patrick was born on September 3, 1976, T. 160, the alleged rape occurred between 1984 to 1986. Count ten alleges that Hensley forced Patrick to preform fellation upon him in his trailer. Patrick testified that this occurred either when he was seven to eight years old, T.185, or six-and-a-half to seven, T.209, or somewhere between 1983 and 1985. Thus Patrick testified that each event occurred after June 16, 1982. Hensley presented no evidence to rebut Patrick's assertionsas to the dates. Thus, the state has met its burden of proof as to these counts since the only evidence before the court indicates that the alleged forcible rapes of Patrick occurred within six years of the commencement of the prosecution. Therefore, Hensley's first assignment of error is found to be not well taken in regards to counts ten to twelve.

Both counts involving Samantha were alleged in the indictment to have occurred between January 1, 1974 to June 30, 1978. The dates of the counts involving Christopher range from January 3, 1976 to August 31, 1979. Thus, counts four through eight allegedly occurred prior to six years before the commencement of the instant prosecution. However, the state argues that these counts fall into the continuing course of conduct and undiscovered corpus delicti exceptions to the statute of limitations. We do not agree.

One exception to the statute of limitations is embodied in R.C. 2901.13(D):

"An offense is committed when every element of the offense occurs. In the case of an offense of which an element is a continuing course of conduct, the period of limitation does not begin to run until such course of conduct or the accused's accountability for it terminates, whichever occurs first."

The state argues that since Hensley was charged with a series of sex offenses against children, the statute of limitations did not begin to run on any of the offenses until the last offense occurred. We are not in accord.

We agree with the state that the offenses charged constitute a continuing course of criminal conduct. However, this fact is not relevant to statute of limitations issues. R.C. 2901.13(D) suspends the statute of limitations for crimes "of which an element is a continuing course of conduct." A continuing course of conduct is not an element of rape or gross sexual imposition. We may not simply ignore the explicit language [61]*61of the statute.

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Bluebook (online)
2 Ohio App. Unrep. 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hensley-ohioctapp-1990.