State v. Hensley

• Citation: 571 N.E.2d 711,59 Ohio St.3d 136
• Decision Date: 01 May 1991
• Docket Number: 90-788,Nos. 90-732,s. 90-732
• Parties: The STATE of Ohio, Appellant and Cross-Appellee, v. HENSLEY, Appellee and Cross-Appellant.
• Court: Ohio Supreme Court

Page 136

59 Ohio St.3d 136

571 N.E.2d 711

The STATE of Ohio, Appellant and Cross-Appellee, v. HENSLEY, Appellee and Cross-Appellant.

Nos. 90-732, 90-788.

Supreme Court of Ohio.

Submitted Feb. 13, 1991.

Decided May 1, 1991.

Syllabus by the Court

For purposes of R.C. 2901.13(F), the corpus delicti of crimes involving child abuse or neglect is discovered when a responsible adult, as listed in R.C. 2151.421, has knowledge of both the act and the criminal nature of the act.

Four indictments were filed against appellee/cross-appellant, Richard J. Hensley (hereinafter "appellee"), between February 16, 1988 and October 11, 1988. These indictments were eventually dismissed; however, a fifteen-count indictment was filed October 11, 1988. This indictment, as amended at trial, charged appellee with seven counts of gross sexual imposition upon children under age thirteen, in violation of R.C. 2907.05(A)(3); and eight counts of rape of children under the age of thirteen, in violation of R.C. 2907.02(A)(3). Of the eight rape counts, three counts alleged the use of force or the threat of force, in violation of R.C. 2907.02(A)(1)(b). These three counts carry a mandatory life sentence in Ohio. See R.C. 2907.02(B).

The alleged victims named in the indictment were six children, all under the age of thirteen, and all residents of the McMahan's trailer court located in Montgomery County, Ohio. Appellee was a resident and maintenance man at the trailer park during most of the relevant time periods. The charges in the indictment allege various acts of sexual abuse perpetrated against the six children, occurring between January 1, 1974 and November 30, 1987. Additionally, all but one of the alleged acts of sexual abuse occurred in the vicinity of the trailer park.

On October 31, 1988 appellee filed a motion for a bill of particulars pursuant to Crim.R. 7(E). He also moved to dismiss the indictment as being defective for lacking specific dates and times of the alleged offenses. The trial court overruled the motions. Appellee having waived his right to a jury trial, the matter proceeded to a trial to the court. On January 3, 1989, the trial judge found appellee guilty of the following counts: counts one, two, and three (gross sexual imposition); counts four, five, six, seven and eight (rape of a person under thirteen years of age); and counts ten, eleven, and twelve (rape of a person under thirteen years of age with the use or threat of force). The trial judge found appellee not guilty of counts nine, thirteen and fourteen. Count fifteen was dismissed because the complaining witness was unavailable. Appellee was thereafter sentenced according to law.

Upon appeal, the appellate court affirmed appellee's convictions, with the exception of counts four through eight. Finding that these counts were barred by the statute of limitations pursuant to R.C. 2901.13, the court of appeals reversed appellee's convictions on these counts. In so ruling, the appellate court rejected the state's argument that counts four through eight came under the "corpus delicti" exception to the statute of limitations. Rather, the court of appeals held that the statute of limitations begins to run " * * * when any competent person other than the wrongdoer or someone in pari delicti [sic ] with him has knowledge of both the act and its criminal nature * * *." Finding its decision on this issue to be in conflict with the decision of the Court of Appeals for Hamilton County in State v. Buhl (Nov. 20, 1983), No. C-830009, unreported, the appellate court certified the record of the case to this court for review and final determination (case No. 90-788).

Additionally, the appellate court rejected appellee's assignment of error regarding the denial of his motion for a bill of particulars, holding that the trial court did not abuse its discretion since the indictment adequately informed appellee of the charges against him. On July 25, 1990, we granted a cross-motion for leave to appeal (case No. 90-732).

Lee C. Falke, Pros. Atty., and Lorine M. Reid, Dayton, for appellant and cross-appellee.

Dennis L. Bailey, Dayton, for appellee and cross-appellant.

ALICE ROBIE RESNICK, Justice.

We will first consider the certified question, which involves the appellate court's reversal of counts four through eight as being barred by the statute of limitations pursuant to R.C. 2901.13.

I

R.C. 2901.13 is a general statute of limitations which prescribes the time within which criminal prosecutions must be brought by the state, and provides in part:

"(A) Except as otherwise provided in this section, a prosecution is barred unless it is commenced within the following periods after an offense is committed:

"(1) For a felony other than aggravated murder or murder, six years[.]"

Thus, the plain wording of the statute requires that felony prosecutions (other than aggravated murder or murder) must be brought within six years from the date the offense is committed. However, by use of the phrase "[e]xcept as otherwise provided in this section," 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. Indeed, the legislature has enumerated these rules and tolling exceptions in the succeeding paragraphs of R.C. 2901.13. For example, R.C. 2901.13(B) provides a special rule extending the time period for the commencement of prosecution for an offense of which an element is fraud or breach of fiduciary duty. Likewise, R.C. 2901.13(C) sets forth a rule of law extending the statute of limitations for the commencement of prosecution for an offense involving misconduct in office by a public servant.

Pertinent to this appeal is R.C. 2901.13(F), which provides as follows: "The period of limitation shall not run during any time when the corpus delicti remains undiscovered." This provision clearly tolls the running of the statute of limitations.

The state contends that the court of appeals erred in holding that R.C. 2901.13(F) did not toll the running of the statute of limitations as to counts four through eight. These counts charged appellee with the rape of two children, both under the age of thirteen, in violation of R.C. 2907.02(A)(3). The two children, sister and brother, were born March 6, 1969 and January 3, 1972, respectively. The dates that these offenses are alleged to have occurred range from January 1974 through August 1979. R.C. 2901.13(E) states that "[a] prosecution is commenced on the date an indictment is returned * * *." The indictment under which appellee was convicted was filed on October 11, 1988. It is obvious that any crime in the indictment alleged to have occurred before October 11, 1982 would be barred by the six-year statute of limitations in R.C. 2901.13, unless the statute of limitations was somehow tolled or otherwise extended. The state asserts that the statute of limitations begins to run when either the prosecuting attorney or police discover the corpus delicti of the crime.

As noted earlier, the court of appeals ruled that the corpus delicti of a crime is discovered, and the statute of limitations begins to run, when "any competent person other than the wrongdoer or someone * * * [equally at fault] with him has knowledge of both the act and its criminal nature * * *. This includes 'discovery' by the victim." The appellate court went on to find that the parents and counselor(s) of both of the children who were victimized by appellee knew of the events surrounding this case. Consequently, the appellate court concluded that the crimes against these two children were "discovered" more than six years prior to the commencement of the criminal action, and thus prosecution for these crimes was barred.

A

The question before this court becomes: when is the corpus delicti of a crime "discovered" for the purposes of R.C. 2901.13(F)? This court defined the "corpus delicti" of a crime as being the body or substance of the crime, and usually having two elements: (1) the act itself, and (2) the criminal agency of the act. State v. Black (1978), 54 Ohio St.2d 304, 307, 8 O.O.3d 296, 297, 376 N.E.2d 948, 951. See, also, State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051, paragraph one of the syllabus. We will adhere to that definition. We find that the Comment of the Legislative Service Commission to R.C. 2901.13 provides some guidance in deciding when the corpus delicti of a crime is discovered: " * * * The section [R.C. 2901.13] gives various special rules for determining when the time limits begin to run and for tolling the time limits, so that the basic thrust of the measure is to discourage inefficient or dilatory law enforcement rather than give offenders the chance to avoid criminal responsibility for their conduct. * * * The rationale for limiting criminal prosecutions is that they should be based on reasonably fresh, and therefore more trustworthy evidence. In the case of aggravated murder or murder, the grave nature of the offense overrides the general policy behind limiting criminal prosecutions, and therefore no limitation is provided." Committee Comment to Am.Sub. H.B. No. 511.

Initially, it should be noted that we are dealing with the sexual abuse of children. Statutes and case law in Ohio, as well as the rest of the country, seek to protect and ensure the safety of children of tender age. It is common knowledge in child sex abuse cases that the victims often internalize the abuse, and in some instances blame themselves, or feel somehow that they have done something wrong. Moreover, the mental and emotional anguish that the victims suffer frequently inhibits their ability to speak freely of the episodes of abuse. For these reasons, we reject the court of appeals' holding that because the children in the present case understood the wrongness of appellee's acts, the corpus delicti of the crime was discovered by them. While...