Summary
In State v. Pfouts (1992), 62 Ohio Misc.2d 587, the Common Pleas Court of Wood County distinguished Hensley in a misdemeanor sexual imposition prosecution where the victim did not report the crime allegedly committed upon her at age 14 until she reached the age of 21. The court held that the tolling of the statute of limitations ceased upon the victim's attaining the age of eighteen and dismissed the indictment.
Summary of this case from State v. WooldridgeOpinion
No. 92CR026.
Decided May 6, 1992.
Gwen Howe-Gebers, Assistant Prosecuting Attorney, for the state.
James Sharp, for defendant.
This matter comes before the court on the defendant's motion to dismiss Count 2 of the indictment alleging a violation of R.C. 2907.06(A)(4), a misdemeanor. The court has considered defendant's brief in support of defendant's motion to dismiss, the state's brief in opposition thereto and the oral arguments of counsel.
In Ohio, limitations of criminal prosecutions are governed by R.C. 2901.13(A), which provides as follows:
"Except as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed:
"* * *
"(2) For a misdemeanor other than a minor misdemeanor, two years[.]"
R.C. 2901.13(F), however, provides:
"The period of limitation shall not run during any time when the corpus delicti remains undiscovered."
The issue here is when was the corpus delicti discovered.
The facts alleged in this case are as follows:
(1) Between March 1 and June 30, 1986, the defendant, David Pfouts, had sexual contact with the victim.
(2) At the time of the contact, the victim was fourteen years of age.
(3) The victim told her sister about the incident shortly after the alleged sexual contact with the victim had occurred.
(4) The victim spoke with an investigator from the prosecutor's office in November 1991.
(5) At the time of that discussion the victim was twenty and one-half years of age.
(6) The indictment charging the misdemeanor offense of sexual imposition was filed on January 23, 1992.
In State v. Alexander (1989), 58 Ohio App.3d 28, 29, 567 N.E.2d 1333, 1334, the Court of Appeals for Lorain County found that "when 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."
The current controlling case is State v. Hensley (1991), 59 Ohio St.3d 136, 571 N.E.2d 711, wherein 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. 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. * * * 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." Id. at 138-139, 571 N.E.2d at 713-714.
The court in Hensley cited, and appears to have adopted from the Committee Comment to Am.Sub.H.B. No. 511, the proposition that R.C. 2901.13 is designed "`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. * * *'" Id. at 138, 571 N.E.2d at 714.
In rejecting the state's argument that the statute of limitations begins to run only when the prosecutor or other law enforcement agencies discover the corpus delicti of the crime, the court further stated:
"* * * Such a rule of law could subject a person to criminal liability indefinitely with virtually no time limit, and thus frustrate the legislative intent of a statute of limitations on criminal prosecutions. We point once again to the Committee Comment, supra, which provides that `[t]he rationale for limiting criminal prosecutions is that they should be based on reasonably fresh, and therefore more trustworthy evidence.' Hence we will not authorize such an expansive reading of R.C. 2903.13(F)." Id. at 139, 571 N.E.2d at 714.
The court, also stated:
"Our objective is to strike a proper balance between the need to place some restriction on the time period within which a criminal case may be brought, and the need to ensure that those who abuse children do not escape criminal responsibility for their actions. * * *" Id. at 139, 571 N.E.2d at 714.
Toward that goal the court held that the statute would begin to run upon the notification of the alleged criminal act to any of those persons listed as responsible adults in R.C. 2151.421.
In the Hensley case the court found that "[f]or 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." Id. at syllabus.
It should be noted that in the Hensley case the child-victims were apparently still children at the time the criminal prosecutions were brought. In the instant case, the child-victim had attained majority more than two years prior to the time the prosecution was initiated.
To apply Hensley in an open-ended fashion permitting the prosecution of child sexual offenses at any time later in the victim's life when the crime may first be reported to an R.C. 2151.421 responsible adult would open the door to such prosecutions long after the act and fly in face of the rationale for limiting criminal prosecutions as set forth in the Committee Comment and adopted by the Ohio Supreme Court in Hensley, and require those accused to possibly defend against charges, the evidence for which is obscured by the passage of time. As pointed out by the Court of Appeals for Summit County in State v. Sutter (Nov. 15, 1989), No. 13749, unreported, at 9, "[e]xceptions to the running of the statute must be narrowly construed in favor of the accused."
Yet, we do recognize that if a victim is suffering from internalization or inhibitions brought on by physical, mental or emotional conditions which limit the victim's acknowledgement of the act or recognition of the illegal nature of the act, it may be possible for the corpus delicti not to be "discovered" until after the attainment of majority.
For this reason, we find that the child-abuse victim in the instant case is presumed to have understood and acknowledged the act and the criminal nature of the act upon attaining the age of majority; and, absent a showing to the contrary rebutting such presumption, the tolling of the statute of limitations with regard to that act ceased upon the child-victim's attaining the age of eighteen years.
By so ruling we are not, in the words of the court in Hensley, imposing the burden to contact the authorities on an already traumatized and susceptible child of tender years, but we are imposing that burden on one who has attained majority and who is free of internalization or undue inhibitions brought on by factors beyond the victim's control.
Therefore, Count 2 of the indictment is dismissed.
Reporter's Note: Count 1 of the indictment was later resolved and there was no appeal.
Judgment accordingly.