The State of Ohio v. BESS

• Decision Date: 20 July 2010
• Docket Number: No. 2009-1196.,2009-1196.
• Citation: 2010 Ohio 3292,933 N.E.2d 1076,126 Ohio St.3d 350
• Parties: The STATE of Ohio, Appellant, v. BESS, Appellee.
• Court: Ohio Supreme Court

126 Ohio St.3d 350

933 N.E.2d 1076

2010 Ohio 3292

The STATE of Ohio, Appellant,

v.BESS, Appellee.

No. 2009-1196.

Supreme Court of Ohio.

Submitted March 9, 2010.

Decided July 20, 2010.

Syllabus of the Court

R.C. 2901.13(G) tolls the statute of limitations for all offenses committed by an accused during the time when the accused purposely avoids prosecution, regardless of whether an indictment has been returned or whether underlying criminal activity has been discovered.

William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellant.

David L. Doughten, Cleveland, OH, for appellee.

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, and Brandon J. Lester, Deputy Solicitor, urging reversal for amicus curiae Ohio Attorney General.

Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant Public Defender, urging affirmance for amicus curiae Ohio Public Defender.

O'DONNELL, J.

{¶ 1} The state of Ohio appeals from a judgment of the Eighth District Court of Appeals affirming the trial court's dismissal of an indictment against Larry Bess as barred by the statute of limitations. The issue presented here concerns whether R.C. 2901.13(G), which provides that the statute of limitations shall not run during any time when the accused purposely avoids prosecution, tolls the limitations period for all offenses the accused committed, or whether it applies only to those offenses for which an indictment has been returned or underlying criminal activity has been discovered before the accused absconds.

{¶ 2} Nothing in this statute limits its application to only those crimes that had been discovered at the time the accused avoided prosecution. Rather, R.C. 2901.13(G) tolls the statute of limitations for all offenses committed by an accused during the time when the accused purposely avoids prosecution for any offense. Accordingly, the judgment of the court of appeals is reversed, and the indictment is reinstated.

Facts and Procedural History

{¶ 3} In the early 1980s, Larry Bess began living with Theresa Ogden, and the couple married in 1986. Theresa had two children from a prior relationship: a son and a daughter. They lived at the Sunrise Cove Condominiums in North Royalton, where Bess began sexually abusing Theresa's daughter. The abuse continued until February 1989, when the daughter revealed it to a school counselor, who then reported the abuse to law-enforcement personnel and children's services.

{¶ 4} Bess also allegedly sexually abused Theresa's son during this same time period, but when Detective Allen Napier of the North Royalton Police Department interviewed him as part of the investigation of his sister's claims, he said that his sister had lied, and he denied having been sexually abused by Bess.

{¶ 5} When Bess became aware of the investigation, he began making plans to change his identity and leave town. He told Theresa that he planned to leave and assume a new identity because he did not believe that he could defend himself against her daughter's allegations and did not want to go to jail.

{¶ 6} Bess and Theresa sold their home in North Royalton and split the proceeds. Bess then purchased a van, loaded his belongings, and left. When asked why she had not told authorities about Bess's plans to abscond, Theresa testified, “He hadn't been indicted or-you know. Nobody asked.” She did not try to stop him from leaving, because she did not believe that he had sexually abused her daughter.

{¶ 7} On November 2, 1989, after Bess left the jurisdiction, a Cuyahoga County grand jury indicted him on three counts of rape and seven counts of gross sexual imposition in connection with the abuse of Theresa's daughter. The Cuyahoga County Court of Common Pleas issued a capias for his arrest on November 27, 1989, when he failed to appear in court. Bess successfully concealed his identity and his whereabouts until March 5, 2007, when the FBI arrested him in Bogart, Georgia, where he had been living under an alias of Norman E. Weatherby.

{¶ 8} Following Bess's apprehension, Detective David Sword of the North Royalton Police Department began looking for witnesses in the case. He met with Theresa's son, who eventually revealed that Bess had sexually abused him from 1982 to 1989.

{¶ 9} Based on his statements, the state obtained a second indictment against Bess, charging him with six counts of rape, two counts of gross sexual imposition, and one count each of attempted rape and complicity in the commission of rape.

{¶ 10} The trial court tried Bess for the offenses committed against Theresa's daughter, which were not time-barred because he had purposely avoided that prosecution, and a jury subsequently found him guilty of those charges. The court of appeals affirmed. See State v. Bess, Cuyahoga App. No. 91560, 2009-Ohio-2032, 2009 WL 1156970.

{¶ 11} Bess moved to dismiss the indictment that charged crimes against Theresa's son, arguing that the six-year statute of limitations established by former R.C. 2901.13(A)(1) ¹ had expired. The state objected, contending that R.C. 2901.13(G) ² tolled the statute of limitations during the time when Bess had purposely avoided prosecution. The trial court granted Bess's motion and dismissed the indictment relating to charges involving crimes against Theresa's son, finding that Bess had not purposely avoided prosecution for those alleged crimes.

{¶ 12} On appeal, the court of appeals affirmed the judgment of the trial court. Relying on State v. McGraw (June 16, 1994), Cuyahoga App. No. 65202, 1994 WL 264401, the author of the appellate court opinion ³ concluded that Bess's flight and his concealment from prosecution for the sexual abuse of Theresa's daughter tolled the statute of limitations for those crimes, but did not toll the statute of limitations for charges related to the sexual abuse of Theresa's son, which the state learned about after Bess's apprehension.

{¶ 13} The state appealed, and we agreed to address the following proposition of law: “The statute of limitations upon criminal offenses is tolled pursuant to former R.C. § 2901.13(G) when the accused purposely avoids prosecution for an offense.”

{¶ 14} The state contends that R.C. 2901.13(G) tolls the statute of limitations for “any and all prosecutions against an accused who purposely avoids prosecution,” noting that this statute contains no language that expressly limits tolling to those prosecutions that the accused specifically intended to avoid. According to the state, the purpose of the statute of limitations is to discourage inefficient or dilatory law enforcement, not to permit offenders to evade responsibility for criminal conduct; thus, tolling should not apply when the offender's action causes the delay in prosecution.

{¶ 15} Bess, on the other hand, asserts that R.C. 2901.13(G) tolls the statute of limitations only when the evidence shows that “the accused left the jurisdiction purposefully to avoid the offense charged.” He maintains that both the rule of lenity, which requires criminal statutes to be strictly construed against the state and liberally construed in favor of the accused, and the purpose of a statute of limitations in general-to protect the accused from having to defend against stale charges-support his construction of the statute. Bess also notes that Theresa's son did not report abuse to anyone before Bess was apprehended, which he now suggests shows that he could not have purposely avoided prosecution for those charges.

{¶ 16} Thus, the issue is whether R.C. 2901.13(G) tolls the limitations period of all crimes allegedly committed by an accused during the time the accused purposefully avoids prosecution, or whether it applies only to the offenses the accused specifically intended to avoid at the time the accused absconded.

Law and Analysis

{¶ 17} R.C. 2901.13(G) provides: “The period of limitation shall not run during any time when the accused purposely avoids prosecution. Proof that the accused departed this state or concealed the accused's identity or whereabouts is prima-facie evidence of the accused's purpose to avoid prosecution.”

{¶ 18} This case presents a question of statutory interpretation of the term “prosecution” as used in R.C. 2901.13(G). As we explained in State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, in construing statutes, “ ‘our paramount concern is the legislative intent in enacting the statute.’ State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21.

Furthermore, ‘[i]n determining this intent, we first review the statutory language, reading words and phrases in context and construing them according to the rules of grammar and common usage.’ Id.” Buehler at ¶ 29. Thus, as the court stated in State v. Teamer (1998), 82 Ohio St.3d 490, 491, 696 N.E.2d 1049, “[w]e must give effect to the words of a statute and may not modify an unambiguous statute by deleting words used or inserting words not used.”

{¶ 19} As Bess argues, the word “prosecution” could refer to a particular prosecution, that is, “[a] criminal proceeding in which an accused person is tried.” Black's Law Dictionary (8th Ed.2004) 1258. If “prosecution” is defined this way, tolling occurs only when a person avoids prosecution for specific charges.

{¶ 20} The word “prosecution,” however, could also refer to the more general process by which an accused is tried and punished for criminal activity. See Thomas v. Peoria (C.A.7, 2009), 580 F.3d 633, 638-639 (“ ‘Prosecution’ * * * just means law enforcement by public officers”); Merriam-Webster's New Collegiate Dictionary (11th Ed.2003) (defining “prosecution” to mean “the act or process of prosecuting”). If this more general definition of “prosecution” was intended by the General Assembly, then the statute encompasses all offenses committed by the accused and tolls the crimes' statute of limitations when an accused...