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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

STATUTE OF LIMITATIONS (153)

Also see Speedy Trial.

 

Basics

Discovery of corpus delicti

Tolling issues

R.C. 2901.13 -- Limitation of criminal prosecutions.

Basics

Stogner v. California (2003), 123 S.Ct. 2446 -- The Ex Post Facto Clause bars revived prosecution of an offense previously barred by the running of a statute of limitations. After the previously specified three-year period had run, California enacted a new law permitting prosecution of old offenses if commenced within one year of report to the police.

State v. Crooks, 152 Ohio App. 3d 294, 2003-Ohio-1546 -- Amendment of R.C. 2901.13(A)(3) to expand the limitations period from six to twenty-two years for certain offenses does not violate the Ohio Constitution's ban on retroactive laws. Retroactive application was intended as the statute states time is extended only for those offenses where the time for commencing prosecution had not yet run under the former provision. Change deemed remedial, not substantive. Also see State v. Steele, 155 Ohio App. 3d 659, 2003-Ohio-7103; State v. Cann, 125 Ohio Misc. 2d 52, 2002-Ohio-7481; State v. Warren, 168 Ohio App. 3d 288, 2006-Ohio-4104.

State v. Danley, 138 Ohio Misc.2d 1, 2006-Ohio-3585 -- Prosecution was commenced by the issuance of a John Doe warrant identifying the accused by gender and a detailed DNA profile. State v. Dabney (2003), 264 Wis.2d 843, 663 N.W.2d 366, followed.

Daniel v. State, 98 Ohio St. 3d 467, 2003-Ohio-1916 -- Former inmate is unsuccessful in his attempt to raise a statute of limitations claim in a habeas action. (1) Generally habeas lies when immediate release from confinement is at issue. Loss of right to own a firearm, to vote, or other civil disabilities are not enough. The state writ is not coextensive with the federal writ. (2) Lost liberties were not of sufficient severity to warrant habeas relief. (3) A statute of limitations violation does not deprive a trial court of jurisdiction. The statute is one of jurisdiction, not repose. (4) Habeas is not a substitute for appeal or postconviction.

State v. Smith (2000), 110 Ohio Misc. 2d 39 -- Reasonable diligence not shown where warrants were issued, but the record shows no return, and indicates they were never issued.

State v. Tolliver (2001), 146 Ohio App. 3d 186 -- (1) The statute of limitations is jurisdictional and is not waived when not raised by trial counsel. The failure to raise the claim constituted ineffective assistance of counsel. (2) The statute of limitation for the crime of conspiracy begins to run from the time of the last overt act committed in furtherance of the conspiracy. This is no later than the time of completion of the substantive offense which is the subject of the conspiracy. (3) The concealment of a conspiracy does not toll the running of the statute of limitations. (4) Defendant was acquitted of aggravated murder and murder counts but convicted of conspiracy to commit murder. If the state cannot demonstrate tolling on remand he is entitled to be discharged.

State v. Amin, 156 Ohio App. 3d 304, 2004-Ohio-886 -- Noting the conflict between State v. Tolliver (2001), 146 Ohio App. 3d 186, 192, and State v. Brown (1988), 43 Ohio App. 3d 39, 43, the Sixth District holds the statute of limitations is not jurisdictional. Failure to raise claim in the trial court leads to plain error review. In any event, since one convicted of complicity to commit murder is subject to the same punishment as the principal offender, there is not time limit.

State v. Phipps, Franklin App. No. 03AP-533, 2004-Ohio-3226 -- Erroneous handling of statute of limitations issue leads to reversal of a murder conviction, when an accomplice was a key witness for the state. (1) Complicity to murder is not subject to the statute of limitations. (2) It was error to allow a detective to testify as to matters of law concerning the statute of limitations. (3) It was a denial of confrontation to forbid cross of the detective in this regard.

Cleveland v. Hirsh (1971), 26 Ohio App. 2d 6, 7 -- While in a civil case the running of the statute of limitations must be interposed as an affirmative defense and in a timely manner, in criminal cases: "It is universally held that such statutes cannot be waived by failure to assert them, but may be raised at any time, before or after conviction." Compare State v. Brown (1988), 43 Ohio App. 3d 39 holding claim is waived by entry of guilty plea.

State v. Morris (1984), 20 Ohio App. 3d 321 -- Headnotes: "(1) A prosecution is not commenced so as to toll the running of the statute of limitations merely by the issuance of a summons or warrant, unless reasonable diligence is exercised to execute the same. (2) Where a summons is sent to the defendant by first class mail and returned as undeliverable, the prosecution has not exercised reasonable diligence to execute the summons within the contemplation of R.C. 2901.13(E). The prosecution is required to demonstrate that an effort has been made to serve the summons in a manner provided by Crim. R. 4(D)."

State v. Greer (1981), 2 Ohio App. 3d 399 -- Headnotes: "(1) A prosecution is not commenced by the return of an indictment or the filing of an information unless reasonable diligence is exercised to issue and execute process on the same. (2) A prosecution is not commenced upon issuance of a warrant, summons, citation, or other process, unless reasonable diligence is exercised to execute the same."

State v. Crow (1986), 28 Ohio Misc. 2d 1 -- Reasonable diligence has not been exercised when the sheriff failed to execute an outstanding warrant while the defendant was in jail on other charges. In addition, there was no indication efforts had been made to execute the warrant at the defendant's home.

State v. King (1995), 103 Ohio App. 3d 210, 212-213 -- "The prosecution bears the burden of proving that the time, when the prosecution was commenced, falls within the two-year statute of limitations. To do so, the prosecution must demonstrate that reasonable diligence was exercised to serve the summons. Here the evidence only showed one attempt was made to serve appellee when her whereabouts could have easily been ascertained." Defendant left change of address cards with the Post Office, maintained employment and paid taxes, filed for bankruptcy, applied for state jobs, and received a BMV notice at present address.

State v. Young (1981), 2 Ohio App. 3d 155 -- Headnote: "The state bears the burden of proving that the time when the crime was committed comes within the appropriate statute of limitations. A five-month investigatory period will not be validated as a reasonable period of time necessary for 'discovery of the offense' of welfare fraud for purposes of the one-year saving provision of R.C. 2901.12(B)" Department had been slow in processing information leading to filing of charges and unless this period could be excluded, time had run.

State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St. 3d 70, -- Action to have Sam Shepard declared innocent may or may not have been barred by statute of limitations concerning wrongful imprisonment actions. But since the expiration of a statute of limitations is not a jurisdictional defect, the remedy is appeal following final judgment, not a prohibition action.

State v. Hollis (1993), 91 Ohio App. 3d 371 -- Statute of limitations issue was raised by the judge during a guilty plea hearing, but counsel could not say whether it was a legitimate issue, and the matter was not definitively addressed from the bench. Post-sentence motion to withdraw guilty plea should have been granted to correct manifest injustice.

State v. King (1996), 114 Ohio App. 3d 669, 673 -- For purposes of the statute of limitations, the issuance of uniform traffic ticket, which serves as both complaint and summons, served to commence prosecution of a traffic offense.

State v. Selvage (1997), 80 Ohio St. 3d 465 -- Syllabus: "Statutory periods of limitations are not relevant to a determination of whether an individual's constitutional right to a speedy trial has been violated by an unjustified delay in prosecution."

Spaziano v. Florida (1984), 468 U.S. 447 -- There is no obligation to instruct the jury on a lesser included offense in a capital murder case where prosecution for such lesser offense would be barred by the statute of limitations.

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Discovery of corpus delicti

State v. Cook, 184 Ohio App. 3d 382, 2009-Ohio-4917 – Facts are complex, but attorney was charged with tampering with records based on the filing of a falsified deed on July 12, 2001. This was part of as broader scheme centered on an elderly client’s desire to donate her farm to her church, a separate backdated deed to circumvent a Medicaid regulation, and the attorney’s scheme to make the donation in her own name so she could take a charitable contribution deduction on her own federal income tax returns over a five-year period. The crime was complete, and material needed for prosecution was a matter of public record as of July 12, 2001. But it was not discovered until 2004 when the church looked into the matter. Indictment was filed on July 18, 2008, more than six years after the date of the offense. (1) Court of appeals holds time was tolled pursuant to R.C. 2901.13(F) until discovery by the corpus delicti by the church. On this issue, the case was certified to the Supreme Court as a certified conflict with State v. Mitchell (1992), 78 Ohio App. 3d 613. State v. Cook, 2009-2122, 2010-Ohio-6305. (2) Court rejects state’s continuing course of conduct pitch, based on the period during which the defendant filed tax returns claiming bogus deductions. (3) Court reject’s states claim indictment could be amended to cover another bogus deed, executed to defraud Medicaid.

State v. Cook, 128 Ohio St. 3d 120, 2010-Ohio-6305 – Syllabus: “(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.” State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli, L.P.A. (1999), 85 Ohio St. 3d 582 limited to its facts.
Dissent interprets the syllabus to mean the tolling provision in R.C. 2901.13(F) applies to all felonies from the date the offense is committed until the time the offense is discovered.

State v. Preztak, 181 Ohio App. 3d 106, 2009-Ohio-621 – When a theft offense is premised on a continuing course of conduct, such as embezzlement, time does not begin to run for purposes of the statute of limitations until the final theft occurs. R.C. 2913.61(C)(1) required offenses within the employment be aggregated. They could not be prosecuted as separate counts.

State v. Alexander (1989), 58 Ohio App. 3d 28, 29 -- "...(W)hen a child-victim does not know that an act is wrong, the corpus delicti of the crime remains undiscovered, and the period of limitation does not commence to run until the wrong is discovered."

State v. Hensley (1991), 59 Ohio St. 3d 136 -- Syllabus: "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." Also see State v. Bailey (1992), 83 Ohio App. 3d 749, 751-752; State v. Weiss (1994), 96 Ohio App. 3d 379. (Prosecution barred where victims were 15 and 17 at the time of the acts alleged, but waited ten years or more to report what had happened.) Compare State v. Climaco, Climaco, Seminatore, Lefkowitz & Garafoli Co., L.P.A. (1999), 85 Ohio St. 3d 582.

State v. Elsass (1995), 105 Ohio App. 3d 277 -- Acts of molestation occurred when victim was between 8 and 12, but were not recalled until she was 18. Since she did not report acts to a responsible adult prior to reaching the age of majority, time did not begin to run before age of majority.

State v. Hughes (1994), 92 Ohio App. 3d 26 -- With respect to child victims of sex abuse, now past the age of majority, the statute of limitations begins to run after the prosecutor or other law enforcement authorities discover the corpus delicti. Unless a victim past the age of majority is shown not to have recognized the unlawful nature of the act, time runs from attaining the age of majority. Also see State v. Webber (1995), 101 Ohio App. 3d 76.

State v. Ritchie (1994), 95 Ohio App. 3d 569 -- Corpus delicti of rape and GSI was discovered when the child's baby sitter reported his account of sexual conduct to the local children services agency, which investigated but declined to refer the matter for prosecution because it could not substantiate the allegations. Six-year statute of limitations ran from that time.

State v. Rosenberger (1993), 90 Ohio App. 3d 735 -- Child victim of sexual abuse reported incident to her mother, who then mentioned it to a neighbor who was a paramedic. Applying State v. Hensley (1991), 59 Ohio St. 3d 136 the parent's knowledge did not trigger the period of limitation, as a parent may not always report abuse in a timely manner. While a paramedic is an "other health care professional" required to report abuse, time was not triggered as the person in question came into the information as a neighbor and not in his official capacity.

State v. Turner (1993), 91 Ohio App. 3d 153 -- Rationale of State v. Hensley (1991), 59 Ohio St. 3d 136 extended to an R.S.P. case where the person who discovered the corpus delicti was a family member, and thus unlikely to fulfill the public duty of reporting to the authorities.

State v. Lester (1996), 111 Ohio App. 3d 736 -- Information that welfare recipient was employed, reflected by state tax returns and investigation by the state auditor, could not be imputed to county welfare department until it received report from the auditor.

State v. Mitchell (1992), 78 Ohio App. 3d 613 -- Court concludes that provision in R.C. 2901.13(B) allowing one year after the discovery of the offense for prosecution to commence in certain cases takes precedence over subdivision (F) which states the period of limitation does not run during any period when the corpus delicti of the crime remains undiscovered.

Shaker Heights v. Heffernan (1989), 48 Ohio App. 3d 307 -- Attorney found in contempt after it was discovered he had appeared in court with a person he knew not to be the person named in a traffic citation. Because fraud was involved, contempt could be prosecuted within one year of discovery.

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Tolling issues

State v. Russell, 182 Ohio App. 3d 91, 2009-Ohio-1747 – The corpus delicti of a crime involving the sexual abuse of children exists when an employee of a children services agency has knowledge of both the act and its criminal nature. Here this happened when he defendant made a confession to a police officer and a caseworker. An indictment was returned 23 years later, by which time the statute of limitations had run. Time was not tolled because the defendant had left the state to avoid prosecution because there was no prosecution for him to avoid until the indictment was filed.

State v. Bess, 126 Ohio St. 3d 350, 2010-Ohio-3292 – Stepfather left the state while allegations of sexual abuse of stepdaughter was under investigation. Time was also tolled with respect to new abuse charges relating to a stepson who had previously denied abuse took place. Syllabus: “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.” Case below: State v. Bess, 182 Ohio App. 3d 364, 2009-Ohio-2254.

State v. Gallant, 174 Ohio App. 3d 264, 2007-Ohio-6714 – Bad check charges were filed in 1989. A single unsuccessful effort was made to serve the defendant by certified mail. Defendant missed arraignment and a warrant was issued. A month later she remarried and moved out of state with her husband who was in the military. She was arrested on the outstanding warrant seventeen years after it was issued. (1) As to tolling, change of name and moving out of state may have given rise to a presumption that she had a purpose to evade prosecution, but this was rebutted by numerous factors, including obtaining a marriage license at the courthouse, calling and leaving contact information when she learned of charges a few years after they were filed, and returning to the community, finding employment and entering into community activities. (2) A single attempt to make service by certified mail is not reasonable diligence. A further attempt to serve by regular mail was of no significance.

State v. West (1999), 134 Ohio App. 3d 45 -- Court concludes time did not run, though defendant apparently inquired about state's willingness to provide an airline ticket so he could return from Indonesia, which did not have an extradition treaty with the U.S., and made inquiries at the embassy in Singapore, where there was a treaty.

State v. Wallace, 160 Ohio App. 3d 528, 2005-Ohio-1746, ¶28-29 -- Statute of limitations did not begin to run until the end of the continuing course of conduct, here depriving the defendant's son of his Social Security benefits.

State v. Edwards (1997), 119 Ohio App. 3d 237 -- Brother trying to prevent sister's estate passing to her husband learned defendant had a prior marriage under another name and pursued filing of bigamy and falsification charges. Statute of limitations runs from time of discovery, not time of second marriage.

State v. Detillio (1992), 90 Ohio App. 3d 241 -- The three year statute of limitations applicable to securities law offenses does not contain a provision tolling time while the violation remains undiscovered. Court finds that the tolling provision set forth in the general statute of limitations may not be extended to securities cases.

State v. Burchfield (1997), 118 Ohio App. 3d 53, 61-62 -- Police officers concealed employment to receive federal housing assistance. (1) State bore burden of proving tolling provisions applicable to breach of fiduciary duty, public servants or undiscovered corpus applied. (2) Motion to dismiss on statute of limitations grounds was sufficient notice to state of need to establish time was tolled. (3) As a matter of law, the offense was not one involving misconduct in office as term is used in R.C. 2901.13(C).

State v. Tillman (1997), 119 Ohio App. 3d 449, 457 -- Seventeen year old was tried as an adult without having bound over by juvenile court. Conviction was vacated, he was bound over and again convicted. Statute of limitations was tolled during the period the first appeal was pending, and during the time between affirmance and grant of postconviction relief.

State v. Sakr (1995), 101 Ohio App. 3d 334 -- On the eve of oral examination by thesis committee, member of the committee used his status to attempt to coerce master's degree candidate into having sex with him. Incident was promptly reported, but charges were not brought until more than six years passed. (1) Professor was a public servant for purposes of the tolling the statute of limitations pursuant to R.C. 2901.13(C). (2) Such status does not toll statute of limitations with respect to any offense which such a person may commit. (3) Here, there was not the required nexus between the auspices of the office and the wrongdoing that it constitutes an offense against justice and public administration as codified in R.C. Chapter 2921, or, alternatively, the wrongdoer must have misused his or her public office effectively to conceal the wrongdoing and thus thwart timely prosecution.

State v. Heebsh (1992), 85 Ohio App. 3d 551 -- For purposes of the statute of limitations, a high school tennis coach, charged with endangering children and sexual battery, is a public servant, extending the time within which prosecution must be commenced.

State v. Pfouts (1992), 62 Ohio Misc. 2d 587 -- Tolling of the statute of limitations with respect to victims of sex offenses while they were children ceases at age 18. Victim had revealed incident to her sister shortly after it happened, but apparently did not contact authorities until she was more than two years past the age of majority.

State v. Swartz (2000), 88 Ohio St. 3d 131 -- Bridge caused flooding on neighbor's property. So long as it remained a continuing nuisance within the control of the owner, the statute of limitations was tolled.

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