Statute of limitation not applicable in child sex abuse case
A spokesman for the Cuyahoga County prosecutor commended the decision by the Supreme Court of Ohio earlier this week for precluding any notion that at-large offenders may shield themselves from the law through statutory time limits.
The Court ruled 4-2 that nothing in R.C. 2901.13(G), which provides that the statute of limitations shall not run during any time when the accused purposely avoids prosecution, 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," Justice Terrence O'Donnell wrote for the majority.
The high court decision reversed the judgment of the 8th District Court of Appeals and reinstated the indictment.
"Fugitives like Larry Bess can no longer take advantage of the statute of limitations to hide from justice," said Ryan Miday, spokesman for Cuyahoga County Prosecuting Attorney William Mason. "The criminal statute of limitations is not designed to reward criminals who flee the state, and this decision by the Ohio Supreme Court recognizes that and ensures the state will have the opportunity to bring Bess to trial and prove he sexually abused a second child victim. ..."
According to the case summary, Bess began living with Theresa Ogden in the early 1980s and the couple married in 1986. Theresa had two children - a son and a daughter - from a previous relationship. They lived at the Sunrise Cove Condominiums in North Royalton, where Bess began sexually abusing Ogden'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.
Bess also allegedly sexually abused Ogden's son during this same period of time, but when North Royalton Police Det. Allen Napier 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, summary continued. When Bess became aware of the investigation, he began making plans to change his identity and leave town. He told Ogden 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.
The couple sold their home and split the proceeds. Bess purchased a van, loaded his belongings and left. On Nov. 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 Ogden's daughter. The Cuyahoga County Court of Common Pleas issued a capias for his arrest on Nov. 27, 1989, when he failed to appear in court, summary continued. Bess successfully concealed his identity and whereabouts until March 5, 2007, when the FBI arrested him in Bogart, Ga., where he had been living under the alias of Norman Weatherby.
After he was apprehended, the North Royalton Police Department began looking for witnesses in the case. Ogden's son eventually revealed that Bess had sexually abused him from 1982 to 1989.
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.
The trial court tried Bess for the offenses committed against Ogden's daughter, which were not time-barred, because he had purposely avoided that prosecution, and a jury subsequently found him guilty of those charges, and the court of appeals affirmed.
Bess moved to dismiss the indictment that charged crimes against Ogden's son, arguing that the six-year statute of limitations established by former R.C. 2901.13(A)(1)1 had expired, prompting the state's objection, contending that R.C. 2901.13(G)2 tolled the statute of limitations during the time when Bess had purposely avoided persecution, summary continued. The trial court granted Bess' motion and dismissed the indictment relating to charges involving crimes against the woman's son, finding that Bess had not purposely avoided prosecution for those alleged crimes.
On appeal, the 8th District affirmed the judgment of the trial court, concluding that Bess' flight and his concealment from prosecution for the sexual abuse of the 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 the son, which the state learned about after Bess' apprehension.
The state appealed, and the high court agreed to address the proposition of law that "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."
"The legislature has mandated that the period of limitations shall not run during any time when the accused purposely avoids prosecution," O'Donnell concluded. "The word 'prosecution' means the process of bringing those who commit crimes to justice, and in the context of the statute, that definition is not limited to the crimes of which the authorities are aware or for which the accused has been indicted. In this case, if Bess committed the alleged crimes against Theresa's son, then he knew that when he fled, but his motivations in fleeing the jurisdiction are known only to him.
"The General Assembly, however, did not intend to require the state to prove the accused specific intent in absconding, nor did it intend to toll the statute of limitations as to crimes known to the state but not toll it as to crimes unknown to the state. If we interpreted the statute otherwise, an accused would benefit from absconding from prosecution of crimes unknown to the state. This would be an illogical interpretation of the statute."
Justice Judith Ann Lanzinger authored a dissenting opinion- joined by Justice Paul Pfiefer - which characterized the majority's rendering as too broad and in violation of rule of lenity set forth in R.C. 2901.04(A): "Except as otherwise provided in division (C) or (D) of this section, sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."
'A prosecution against a person based on evidence that is obtained almost 20 years after the alleged crime was committed is exactly the kind of prosecution the statute of limitations is designed to bar," Lanzinger wrote, citing Toussie v. United States (1970) , 397 U.S. 1112, 114-115, 90 S. Ct. 858, 25 L. Ed 2d 156. "R.C. 2901.13(G) cannot toll the statute of limitations for a prosecution that has not yet been commenced against an accused. ..."
According to Miday, the county plans to move forward with the prosecution of Bess.
Fellow justices Evelyn Lundberg Stratton, Maureen O'Connor and Robert Cupp joined O'Donnell to form the majority. Chief Justice Eric Brown did not participate in the decision.
The case is cited as State v. Bess, Slip Opinion No. 2010-Ohio-3292.
Copyright 2010, The Daily Reporter, 580 S. High St., Columbus, Ohio. Reprinted with Permission.
