State v. Harmon
| Decision Date | 26 January 2017 |
| Docket Number | No. 2016AP080042.,2016AP080042. |
| Parties | STATE of Ohio, Plaintiff–Appellant v. Dianna L. HARMON, Defendant–Appellee. |
| Court | Ohio Court of Appeals |
R. Scott Deedrick, Assistant Prosecuting Attorney, New Philadelphia, OH, for plaintiff-appellant.
Dan Guinn, New Philadelphia, OH, for defendant-appellee.
PATRICIA A. DELANEY, P.J., W. SCOTT GWIN, J., WILLIAM B. HOFFMAN, J.
{¶ 1} Appellant State of Ohio appeals from the August 17, 2016 judgment entry of the Tuscarawas County Court of Common Pleas dismissing the felony indictment against appellee Dianna L. Harmon ["Harmon"].
{¶ 2} A concealment action was filed pursuant to Ohio Revised Code 2109.50 in the Tuscarawas County Court of Common Pleas Probate Division by the court appointed fiduciary on June 18, 2013, in the Estate of Paul Harmon, against Harmon and three other family members. In the June 3, 2014, Magistrate's Decision, adopted by the Court on June 26, 2014, Harmon was found guilty of embezzling funds from the estate and both her and her husband were held jointly and severally liable for the misappropriated funds with the statutorily provided penalty of 10%.
{¶ 3} On July 2, 2014, Harmon was indicted by the Tuscarawas County Grand Jury on two counts grand theft in violation of R.C. 2913.02(A)(2) and (3), felonies of the fourth degree. These offenses are punishable by a prison term of six to eighteen months and a fine of not more than $5,000.
{¶ 4} On July 18, 2016, Harmon filed a motion to bar prosecution on the indictment, pursuant to the double jeopardy clause. On August 17, 2016, the trial court granted the motion and dismissed the indictment with prejudice.
{¶ 7} There is no dispute as to the facts underlying this matter. The only issue is a matter of law, whether the Court below erred in granting Harmon's motion dismissing the indictment based upon a double jeopardy prohibition upon the ground that the finding of guilty in the concealment action in the probate court pursuant to R.C. 2109.52 barred the subsequent criminal proceedings.
{¶ 8} State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7, citing State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (1996).
{¶ 9} The principle behind the Double Jeopardy Clause " ‘is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for the alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ " State v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 11, quoting Green v. United States, 355 U.S. 184, 187–188, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The federal and state constitutions' double jeopardy protection further guards citizens against cumulative punishments for the "same offense." State v. Moss, 69 Ohio St.2d 515, 518, 433 N.E.2d 181 (1982). "[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542 (1983). See, also, Moss, 69 Ohio St.2d at 518, 433 N.E.2d at 184–185. In Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), the United States Supreme Court stated:
Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger, 5 Wheat. 76, 93, 5 L.Ed. 37 (1820), the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent, see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).
{¶ 10} The Double Jeopardy Clause of the federal constitution "protects only against the imposition of multiple criminal punishments for the same offense, * * * and then only when such occurs in successive proceedings." (Citations omitted.) Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) ; State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 8.
{¶ 11} The Fifth Amendment bars successive prosecutions only if the two offenses for which the defendant is prosecuted are the "same" for double jeopardy purposes. Heath v. Alabama, 474 U.S. 82, 87, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985). In determining whether an accused is being successively prosecuted for the "same offense," the Ohio Supreme Court has adopted the so called "same elements" test articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). State v. Zima, 102 Ohio St.3d 61, 806 N.E.2d 542, 2004-Ohio-1807, ¶ 18, citing State v. Best, 42 Ohio St.2d 530, 330 N.E.2d 421 (1975), paragraph three of the syllabus.
{¶ 12} Under Blockburger, "the Double Jeopardy Clause * * * prohibits successive prosecutions for the same criminal act or transaction under two criminal statutes unless each statute ‘requires proof of a fact which the other does not.’ " State v. Tolbert, 60 Ohio St.3d 89, 90, 573 N.E.2d 617 (1991), quoting Blockburger at 304, 52 S.Ct. 180. "This test focuses upon the elements of the two statutory provisions, not upon the evidence proffered in a given case." State v. Thomas, 61 Ohio St.2d 254, 259, 400 N.E.2d 897 (1980), overruled on other grounds in State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), superseded by statute as stated in State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23.
Probate Court action for concealment of assets is not a substitute for criminal proceedings.
{¶ 13} R.C. 2109.50 provides that the court or any interested party may file a proceeding in the probate court against any person alleged to have concealed, embezzled, conveyed away or in possession of monies or assets of an estate. A party who is found guilty of misappropriating estate assets can have a judgment in the amount of the proceeds or assets issued against them along with a statutory penalty of 10%. R.C. 2109.52. The statutory concealment action has existed since before the adoption of the Ohio Revised Code. Art v. Erwin, 183 Ohio App.3d 651, 2009-Ohio-4306, 918 N.E.2d 207 (10th Dist.), ¶ 36.
{¶ 14} Probate courts are courts of limited jurisdiction, and probate proceedings are thus restricted to those actions permitted by statute and by the Ohio Constitution. Corron v. Corron, 40 Ohio St.3d 75, 531 N.E.2d 708 (1988), paragraph one of the syllabus. An R.C. 2109.50 proceeding for the discovery of concealed or embezzled assets of an estate is a special proceeding of a summary, inquisitorial character whose purpose is to facilitate the administration of estates by summarily retrieving assets that rightfully belong there. In re Estate of Fife, 164 Ohio St. 449, 132 N.E.2d 185 (1956), paragraphs one and two of the syllabus; Accord, Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, 855 N.E.2d 856, ¶ 23.
{¶ 15} R.C. 2109.52 empowers the probate court to conduct a hearing in the concealment proceeding at which the court may determine questions of title concerning the allegedly concealed, embezzled, or conveyed estate assets, to determine whether the person accused is guilty and, if so, to enter judgment against the person found guilty for the amount of the money or value of assets with a 10% penalty Goldberg v. Maloney, ¶ 27. The complainant must show, by a preponderance of the evidence, that the defendant received money or other assets of an estate claimed to have come into her hands and that she concealed, embezzled, or conveyed it away. In re Woods Estate, 110 Ohio App. 277, 167 N.E.2d 122 (10th Dist.1959) ; Accord, In re Gordon Estate, 5th Dist. Richland No. 13–CA–77, 2014-Ohio-2087, 2014 WL 2050349, ¶ 22.
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