State v. John F. Mcgraw, 94-LW-3885
| Decision Date | 16 June 1994 |
| Docket Number | 94-LW-3885,65202 |
| Parties | STATE OF OHIO, Plaintiff-Appellant v. JOHN F. McGRAW, Defendant-Appellee |
| Court | Ohio Court of Appeals |
Criminal appeal from Court of Common Pleas Case No. 286446.
For Plaintiff-Appellant: STEPHANIE TUBBS-JONES, Cuyahoga County Prosecutor, MELODY A. WHITE, ASST., Justice Center - 8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113.
For Defendant-Appellee: PAUL MANCINO, JR., ESQ., 75 Public Square, Suite 1016, Cleveland, Ohio 44113.
Plaintiff-appellant State of Ohio appeals from a dismissal of an indictment on statute of limitations grounds. Defendant-appellee John F. McGraw was charged in 1992 with various sexual offenses against his stepdaughter, which were alleged to have occurred more than twelve years earlier. After an evidentiary hearing, the trial court dismissed the indictment. We find no merit to this appeal and affirm the dismissal.
On August 24, 1992, the grand jury returned an indictment against defendant charging three counts of sodomy (R.C 2905.44); two counts of incest (R.C. 2905.07); five counts of forcible rape of a child under 13 (R.C. 2907.02(A)(3)); and six counts of rape a (R.C. 2907.02). These offenses were alleged to have occurred between September l, 1971 and March 12, 1979. The victim in all offenses was alleged to be defendant's stepdaughter, Parsa Johnson, who was born on March 13, 1963 and turned 18 on March 13, 1981. Consequently the victim was between the ages of eight and sixteen at tee time of the alleged offenses.
The sexual offenses at issue were alleged to have come to public attention on or about on March 12, 1992, when the victim then twenty-nine-years of age, disclosed the sexual misconduct of the stepfather to two Common Pleas Judges. The stepfather had been prominently featured in a front-page Plain Dealer article discussing his plot to kidnap his alleged daughter in Chile. At that time, Ms. Johnson was a waitress at Sutter's Restaurant on Cleveland's east side. She sought the advice of the two Common Pleas Judges who were having lunch at Sutter's, disclosing for the first time to an adult outside of her family the sexual misconduct of the stepfather which had last occurred twelve years earlier. The judges referred her to the witness/Victim Center where Ms. Johnson recounted the episodes to a social worker and a Euclid detective on March 31, 1992. Defendant was in jail on other charges. The matter was referred to the County Prosecutor's office on July 27, 1992, and defendant was indicted for the sexual offenses on August 24, 1992.
On January 14, 1993, defendant filed a motion to dismiss the indictment based on expiration of the six-year statute of limitations for a non-murder felony. R.C. 2901.13. An evidentiary bearing was held from January 19 through January 21 and from February 4 through February 8, 1993. A journal entry was entered March 2, 1993 dismissing the indictment. The State's sole assignment of error is that the trial court erred by granting defendant's motion to dismiss.
It is the State's contention that the statute of limitations was tolled during the period that the victim suppressed disclosure of the sexual misconduct to anyone out of fear of the defendant and while the defendant was a fugitive from the law and absent from the state. The statutory authority for this position is contained in R.C. 2901.13 which states in pertinent part:
Defendant contends that the corpus delecti ("the body of the wrong") was discovered no later than March 13, 1981, when the victim reached the age of majority in Ohio. Further, defendant argues that the flight and concealment from prosection which stays the running of the statute, pertains only to the prosecution at issue and not the flight to avoid prosecution of another or different crime. A summary of the evidentiary hearing would be helpful to putting the legal issues in perspective.
In addition to evidence previously discussed regarding disclosures to the judges and authorities, the State offered the victim's and the mother's testimony that described in ugly detail the defendant's frequent and violent physical and mental abuse of his wife, the victim and her siblings during their youthful years. It can only be described as a childhood filled with violence and fear brought on by defendant's cruel and abusive behavior. The victim's brothers and sisters testified and corroborated the early days filled with beatings, threats and abuse at defendant's hands.
After defendant left the home in 1980, the violence and threats continued by telephone, post cards and correspondence. The victim's testimony indicated her fear of the defendant continued into adulthood and that she was fearful of pressing charges because the defendant was capable of causing her and family members serious harm; Although the victim had not seen the defendant for 10 or 11 years, she still lived in fear of him and knew he had successfully eluded the Euclid police. It was only when she read in the Plain Dealer about his efforts to kidnap the four-year-old child from his estranged wife in Chile that she got the courage to tell the two judges.
The evidence further disclosed that defendant was cited by the Euclid Police for DWI on May 18, 1981. He failed to appear for his trial on July 20 and a warrant was issued for his arrest on July 21, 1981. Thereafter, his children would receive postcards or letters from him while he was living in Florida, Chile and Colorado. Although Ms. Johnson knew this she never called the police. She first told her husband about the sexual abuse in 1982, two years after her marriage.
This appeal turns in part on the consideration of the Supreme Court's recent decision in State v. Hensley (1991), 59 Ohio St.3d 136. There the Supreme Court addressed the meaning of R.C. 2901.13(F) which tolled the six year statute of limitations "during any time when the corpus delecti remains undiscovered." In Hensley the Court held that "for purposes of 2901.13(F), the corpus delecti 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. " A "responsible adult" under R.C. 2151.421 includes a long list of professionals who work with children and are required to report suspected cases of child abuse. Id., syllabus.
The Supreme Court specifically excluded victims and parents from the list of "responsible adults." The Court stated:
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. *** In other words, even though a child of tender years may know that an act committed against him or her is wrong or even criminal, we are unwilling to impose the burden to contact the authorities on an already traumatized and susceptible child.
Hensley is not controlling given the peculiarities of the instant case. In Hensley, the victims were still minors when they advised a responsible adult about the alleged sexual abuse in February, 1985. The indictments were filed between February 16 and October 11, 1988, well within six years after the corpus delecti was discovered. Here, the victim came of age on March 13, 1981. It was eleven years and five months after her majority that she disclosed the sexual abuse to the two jurists.
Recent decisions have held that the tolling of the statute of limitations ceases upon the child-victim reaching the age of majority. State v. Pfouts (1992), 62 Ohio Misc.2d 587; State v. Hughes (Jan. 10, 1994), Brown App. No. CA 93-07-008, unreported. See, also, Doe v. First United (1994), 68 Ohio St.3d 531, where the Supreme Court held in the syllabus:
A minor who is the victim of sexual abuse has one year from the date he or she reaches the age of majority to assert any claims against the perpetrator arising from the sexual abuse where the victim knows the identity of the perpetrator and is fully aware of the fact that a battery has occurred.
The Court in First United, a civil case, stated that the case did not involve sexual abuse of a child of tender years or incest. The Court refrained from considering whether to apply a rule of discovery to toll the applicable statute of limitations in a case involving childhood sexual abuse. The Court did state in dictum that if the Court were to adopt "a rule of discovery for cases of sexual abuse, the rule would not apply to toll the periods of limitations beyond appellant's eighteenth birthday." Although a civil case, we think the principles enunciated are even more applicable in the criminal field, where the statutes "shall be strictly construed against the state and liberally construed in favor of the defendant. R.C. 2901.04(A).
Under the State's theory that the victim herself was not a responsible adult, the statute of limitations could be tolled indefinitely, no matter what the circumstances, until she...
To continue reading
Request your trial