State v. Cook

• Decision Date: 28 December 2010
• Docket Number: No. 2009–2122.,2009–2122.
• Citation: 942 N.E.2d 357,128 Ohio St.3d 120
• Parties: The STATE of Ohio, Appellee,v.COOK, Appellant.
• Court: Ohio Supreme Court

128 Ohio St.3d 120

942 N.E.2d 357

2010 -Ohio- 6305

The STATE of Ohio, Appellee,

v.COOK, Appellant.

No. 2009–2122.

Supreme Court of Ohio.

Submitted Sept. 29, 2010.Decided Dec. 28, 2010.

[Ohio St.3d 120] Syllabus of the Court

1. 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, approved and followed.)

2. Pursuant to R.C. 2901.13(F), for a felony offense that contains an element of fraud, the six-year statute of limitations in R.C. 2901.13(A)(1)(a) begins to run only after the corpus delicti of that offense is discovered.

3. 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, R.C. 2901.13(B)(1) provides the state one additional year within which to file charges from the date that the aggrieved party discovers the corpus delicti of the offense.

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.

LUNDBERG STRATTON, J.

[Ohio St.3d 121] 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 R.C. 2901.13(F) tolls the criminal statute of limitations for such an offense while the corpus delicti remains undiscovered. The second is whether R.C. 2901.13(B)(1) provides a one-year statute of limitations for an offense that includes an element of fraud.

{¶ 2} We hold that the one-year limitation period in R.C. 2901.13(B)(1) is not applicable to the facts in the instant case. We also hold that pursuant to R.C. 2901.13(F), the six-year statute of limitations in R.C. 2901.13(A)(1)(a) begins to run for a felony offense that contains an element of fraud only after the corpus delicti of the offense is discovered. Accordingly, we affirm the judgment of the court of appeals.

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.

[Ohio St.3d 122] {¶ 8} Finally, Cook filed a fourth deed on September 8, 2004, which again purported to transfer the farm from Cook to the church, with a life estate reserved 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 R.C. 2913.42(A)(1) and (B)(4) and with theft from an elderly person in violation of R.C. 2913.02(A)(2) and (B)(3).

{¶ 14} R.C. 2913.42(A)(1) provides, “No person, knowing the person has no privilege to do so, and with the purpose to defraud or knowing that the person is facilitating a fraud, shall * * * [f]alsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record.” Under R.C. 2913.42(B)(4), tampering with records is a third-degree felony if the record is kept by a local, state, or federal governmental entity.

{¶ 15} Cook moved to dismiss the tampering-with-records charge pursuant to the six-year statute of limitations for felonies in R.C. 2901.13(A)(1)(a). Cook alleged that the crime occurred when she filed the first deed on July 12, 2001, and that the state did not file charges against her until the July 18, 2007 indictment, six days after the six-year statute of limitations had expired. The trial court granted Cook's motion and dismissed the charge.

[Ohio St.3d 123] {¶ 16} The court of appeals found that “the corpus delicti of the tampering-with-records charge in relation to the filing of the July 12, 2001 deed was not known until, at the earliest, February 2004, when the church trustees discovered irregularities in the deeds.” State v. Cook, 184 Ohio App.3d 382, 2009-Ohio-4917, 921 N.E.2d 258, ¶ 37. Applying the tolling provision in R.C. 2901.13(F), the court of appeals held that the six-year statute of limitations in R.C. 2901.13(A)(1)(a) did not begin to run until February 2004. Id. at ¶ 42. Accordingly, the court of appeals reversed the judgment dismissing the tampering-with-records charge, holding that the indictment returned against Cook on July 18, 2007, was timely.

{¶ 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 R.C. 2901.13(F) operates to toll the six-year period of limitations provided for in R.C. 2901.13(A) so that it extends beyond six years from the date upon which a felony offense was committed where the corpus delicti of the offense is discovered within the period of limitations and more than one year prior to expiration of the limitation period.” State v. Cook, 124 Ohio St.3d 1440, 2010-Ohio-188, 920 N.E.2d 371.

{¶ 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 R.C. 2901.13(F) is not applicable. Instead, she argues that pursuant to Climaco, the six-year statute of limitations for felony offenses in R.C. 2901.13(A)(1)(a) began to run from the date of the offense on July 12, 2001, and therefore the state's July 18, 2007 indictment was not timely filed.

{¶ 20} Alternatively, Cook argues that R.C. 2901.13(B)(1) provides a tolling provision and one-year limitation period specifically for offenses that include an element of fraud, while R.C. 2901.13(F) provides a general tolling provision. Cook argues that because the offense herein includes an element of fraud, R.C. 2901.13(B)(1) provides the applicable tolling provision and one-year limitation period running from the date of discovery. Thus, Cook argues that the state had only one year from February 2004 in which to file charges and therefore the July 18, 2007 indictment was not timely filed.

{¶ 21} The state argues that the tolling provision and one-year limitation period in R.C. 2901.13(B)(1) do not apply to the facts in the instant case. The state also argues that Climaco is distinguishable from this case and therefore [Ohio St.3d 124] does not preclude...