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Wednesday, Sept. 29, 2010 - Offsite Court Session - Hardin County

State of Ohio v. Linda S. Cook, Case no. 2009-2122
6th District Court of Appeals (Lucas County)

State of Ohio v. William Calhoun, Case no. 2009-2324
8th District Court of Appeals (Cuyahoga County)

Allstate Insurance Company et al. v. Dailyn Campbell et al., Case no. 2009-2358
10th District Court of Appeals (Franklin County)

Wallace R. Campbell et al. v. City of Carlisle, Case no. 2010-0209
12th District Court of Appeals (Warren County)


Is Time Limit for Prosecuting Fraud-Related Crime 'Tolled' While Criminal Act Remains Undiscovered?

State of Ohio v. Linda S. Cook, Case no. 2009-2122
6th District Court of Appeals (Lucas County)

ISSUE:  R.C. 2901.13 establishes the “statutes of limitations” (legal time limits) after the commission of various types of crimes within which the state must initiate prosecution of a suspected offender. The statute generally provides that failure to prosecute a crime before the statutory deadline has expired will permanently bar the state from pursuing criminal charges against a suspected offender for that conduct.  However, the law also sets forth certain circumstances under which the limitations period for prosecuting a crime is “tolled” (stopped from running).  In this case, the Supreme Court is asked to resolve conflicting rulings by two of the state’s courts of appeals regarding the interplay between two different “tolling” provisions of R.C. 2901.13.

BACKGROUND:  The case involves criminal charges brought against former Sylvania attorney Linda S. Cook in 2007.  Cook was permanently disbarred for falsifying a property deed in July 2001 and engaging in other unethical conduct as part of a scheme in which Cook attempted to obtain for herself large federal income tax deductions arising from a client’s donation of the client’s property to a church. Attorney discipline proceedings against Cook were initiated in February 2004,  however Cook’s falsification of the property deed was not formally brought to the attention of the Lucas County prosecutor’s office until the prosecutor received a written notification from the Toledo Bar Association in October 2006.

On July 18, 2007, a grand jury returned an indictment against Cook charging her with felony counts of tampering with records and aggravated theft based on the conduct that resulted in her disbarment.  Cook moved for dismissal of the record tampering charge on the basis that her falsification of the deed took place on July 12, 2001, and therefore the six-year statute of limitations for prosecuting that offense had expired on July 12, 2007, six days before she was indicted. The trial court granted the motion to dismiss based on a provision in the limitations statute, R.C. 2901.13(B), which states that when a defendant is charged with an offense that includes the element of fraud, and the normal statutory time limit for prosecution has expired, charges may be brought within one year after discovery of the offense by an aggrieved party. In this case, the trial court ruled, the six-year time limit for charging Cook for falsifying the deed had expired before she was indicted, and charges had not been brought within one year after discovery of the falsification, which the court held occurred in February 2004 when attorney discipline proceedings were initiated against her based on that conduct.

The state, represented by the Lucas County prosecutor’s office, appealed the dismissal of the record tampering charge. On review, the 6th District Court of Appeals reversed and reinstated the tampering charge for further proceedings. The court of appeals based its ruling on a different section of the limitations statute, R.C. 2901.13(F), which provides that the limitations period for an offense “will not run during any time when the corpus delicti (body of the crime) remains undiscovered.”  Applying that provision to the facts of Cook’s case, the 6th District held that because Cook’s 2001 falsification of the deed had remained “undiscovered” until at least 2004, the six-year time limit for prosecuting that crime had not begun to run until 2004, and therefore the state’s July 18, 2007 indictment had been returned well within the limitations period. The 6th District subsequently certified that its interpretation of R.C. 2901.13(F) in cases involving fraud was in conflict with a ruling on the same issue by the 8th District. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Cook assert that the 6th District’s holding that R.C. 2901.13(F) stops the running of all statutes of limitations until the criminal act is discovered cannot be upheld because it effectively renders the language  in R.C. 2901.13(B) − requiring prosecution of fraud-related crimes “within one year after discovery of the offense” − meaningless and of no effect. They point to this Court’s 1999 decision in State v. Climaco et al. holding that because the defendants’ offense was discovered within the two-year statutory limitations period for the crime of which they were accused, the running of the normal time limit for initiating prosecution was not tolled by R.C. 2901.13(F).

They urge the Court to follow a line of other past decisions in which it has held that when a general statutory provision such as R.C. 2901.13(F) is in conflict with a provision addressing a specific situation or type of case (in this case the language of R.C. 2901.13(B) specifically addressing fraud offenses), courts should infer that the legislature intended the specific provision to take precedence over the general provision.

Attorneys for the state respond that the plain language of R.C. 2901.13(F) delays the running of the limitations period for all types of crimes in which criminal conduct is not discovered by the victim or police at the time the crime is committed. While acknowledging that one purpose for statutes of limitations is to require the state to prosecute criminal cases before evidence has disappeared and witnesses’ memories of events have faded, they assert that the limitations statute was not intended to give offenders whose crimes are not immediately detected a “free pass” if they are successful in concealing their wrongdoing  for a certain number of years.

They also argue that, even if the Court finds that the tolling provision of R.C. 2901.13(F) is superseded by the one-year-after-discovery deadline for fraud offenses set by R.C. 2901.13(B), Cook’s July 18, 2007 indictment was still timely because her criminal conduct was not “discovered” by the county prosecutor until October 2006, less than one year prior to the date of her indictment.

Contacts
Evy M. Jarrett, 419.213.4700, for the state and Lucas County Prosecutor’s Office.

John F. Potts, 419.255.2800, for Linda S. Cook.

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When Aggravated Murder Charge Is Premised on Prior Attempt, May Defendant Be Tried on Both Charges?

State of Ohio v. William Calhoun, Case no. 2009-2324
8th District Court of Appeals (Cuyahoga County)

ISSUE:  If a jury finds a defendant guilty of aggravated murder based on the “mass murder” specification that he killed the victim as part of a course of conduct involving a prior attempted murder, does the principle of double jeopardy bar the state from later prosecuting the same defendant for the prior attempted murder that was the basis for the “mass murder” specification?

BACKGROUND: In October 2006, William Calhoun of Cleveland shot Curtis Johnson three times. Johnson survived the attack and identified Calhoun as his assailant. Calhoun was subsequently indicted by a Cuyahoga County grand jury for attempted murder, felonious assault and possession of a weapon while under disability.

In March 2007, shortly before his scheduled trial on those charges, Calhoun shot Johnson again, this time killing him. In a new indictment, Calhoun was charged with aggravated murder based on the specifications that 1) he killed Johnson as part of a course of conduct that included a prior murder or attempted murder (i.e. his prior attempt to kill Johnson); and 2) he killed Johnson in order to escape prosecution for another offense (i.e. to prevent Johnson from testifying at Calhoun’s upcoming trial on the charges arising from the October 2006 shooting).

The state left pending the charges based on the October 2006 shooting, and proceeded to trial on the indictment for aggravated murder. The jury found Calhoun guilty of aggravated murder and of both the “mass murder” and “murder to escape prosecution” specifications. He was sentenced to life imprisonment without the possibility of parole.

When the state indicated its intent to go forward with a trial on the still-pending charges arising from the October 2006 shooting incident, Calhoun’s attorneys filed a motion in the trial court seeking dismissal of those charges. They argued that further prosecution of Calhoun for the October 2006 shooting was barred by the constitutional protection against double jeopardy, because Calhoun had already been placed “in jeopardy” for that conduct when the state used the October 2006 shooting incident as the basis to elevate the charge against him for the killing of Johnson to aggravated murder with a “mass murder” specification. 

The trial court granted the motion to dismiss the charges arising from the October 2006 shooting incident on double jeopardy grounds. On review, 8th District Court of Appeals affirmed that ruling. The state sought and was granted Supreme Court review of the 8th District’s decision.

On behalf of the state, the Cuyahoga County prosecutor’s office argues that, contrary to the lower courts’ rulings, Calhoun’s aggravated murder trial did not expose him to jeopardy (the threat of conviction or punishment) for the crimes he had previously been charged with based on the October 2006 shooting of Johnson. They contend that the state merely presented the jury with facts about the 2006 shooting to support a conviction for aggravated murder with a mass murder specification, which requires the state to show that the defendant committed his current crime as part of a course of conduct involving one or more other murders or attempted murders.  

The prosecutor asserts that a defendant faces double jeopardy only when he or she is prosecuted more than once for the same offense, or is given multiple punishments for the same conduct.  In this case, he argues, Calhoun’s prosecution for killing Johnson in March 2007 did not address his guilt or innocence for the separate charges based on his actions five months earlier, and the life sentence he received for murdering Johnson was punishment solely for that crime, not for the other offenses with which he was charged based on the October 2006 incident.  

Attorneys for Calhoun urge the Court to affirm the ruling of the 8th District that, in order to find him guilty of aggravated murder with a mass murder specification, the jury had to find beyond a reasonable doubt that, in addition to his killing of Johnson in March 2007, Calhoun had committed a separate act of murder or attempted murder – which in this case required a finding that his shooting of Johnson in October 2006 constituted attempted murder. 

Because the “mass murder” specification found by the jury exposed Calhoun to increased punishment for the killing of Johnson, and ultimately allowed the trial court to sentence him to life without the possibility of parole, they argue that he has already effectively been prosecuted for, found guilty of and punished for attempted murder based on the October 2006 shooting incident, and the state is therefore barred by double jeopardy from prosecuting or punishing him further for the same conduct.

Contacts
T. Allan Regas, 216.443.7800, for the state and Cuyahoga County Prosecutor’s Office.

John T. Martin, 216.443.3675, for William Calhoun.

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Under What Circumstances May a Trial Court Infer That Policyholder Acted With 'Intent to Cause Injury?'

Allstate Insurance Company et al. v. Dailyn Campbell et al., Case no. 2009-2358
10th District Court of Appeals (Franklin County)

ISSUE:  When an insurance company seeks a declaratory judgment that it owes no coverage to a policyholder based on a policy exclusion for “intentional acts,” under what circumstances may a trial court grant summary judgment in favor of the insurer based on a finding of “implied intent,” i.e. a finding that the policyholder’s conduct was so inherently certain to cause injury that there is no need for a trial to evaluate factual evidence about the defendant’s intent?

BACKGROUND:  As a “prank,” a group of Kenton High School students stole a life-size styrofoam archery target shaped like a deer from a neighbor’s property, added a support leg so the “deer” would stand upright on pavement, spray painted the words “hit me” and several obscenities on the target, and then placed it on a two-lane county road after dark so that it blocked part of the right lane as viewed by oncoming traffic.  The students, all of whom were under 18, then cruised back and forth along the stretch of road where the deer had been placed for several minutes to observe the reactions of other drivers. After at least two approaching cars had encountered the deer and driven around it without damage, a vehicle occupied by teenagers Robert Roby and Dustin Zachariah reacted to seeing the deer by swerving to the right, causing the car to run off the road and crash in an adjoining field. Both Roby and Zachariah suffered serious injuries as a result of the crash.

Roby and Zachariah sued the seven juveniles responsible for placing the deer decoy in the roadway. Among other claims, they sought damages from the juveniles’ parents for failing to exercise reasonable supervision of their conduct. The juveniles and their parents sought coverage for Roby and Zachariah’s claims against them under the personal liability provisions of the parents’ respective homeowner’s insurance policies, which were issued by several different companies including Allstate, Erie Insurance Exchange, Grange Mutual Casualty Co. and American Southern Insurance Company. 

The insurance companies filed a declaratory judgment action in the Franklin County Court of Common Pleas. They asked the court to declare as a matter of law that they owed no coverage to any of the juveniles involved in the incident or to their parents because each company’s  policy contained an “intentional acts” exclusion of liability for “injuries that were intended by or that may reasonably be expected to result from the intentional acts of an insured person.” The common pleas court granted summary judgment in favor of the insurers, holding that whether or not the boys actually intended to cause injury or property damage, their actions were so “substantially certain” to cause injury and/or property damage that their conduct implied an intent to cause injury as a matter of law.

The juveniles and their parents appealed. On review, the 10th District Court of Appeals reversed and remanded the case to the trial court for further proceedings. A 2-1 majority of the three-judge panel held that the insurance companies were not entitled to summary judgment because the pleadings in the case raised several questions of material fact which, when construed most favorably to the policyholders, could support a finding that the “intentional acts” exclusion in their policies did not bar coverage for Roby and Zachariah’s claims against the defendants.  The insurance companies sought and were granted Supreme Court review of the 10th District’s ruling.

Attorneys for Allstate and the other insurers argue that in order to be entitled to summary judgment denying coverage under their policies as a matter of law, they were not required to show that the juveniles who placed the deer decoy on the road actually intended to cause injury or property damage, but were only required to show that the intentional acts of the juveniles created a situation so inherently dangerous that injury or property damage was “substantially certain” to occur.  They contend that the deliberate placement of the decoy so that it blocked one lane of an unlighted two-lane road with a 55 mph speed limit after dark, in a location where oncoming traffic would have little time to react to it, created a situation in which it was simply a matter of time before an approaching vehicle either hit the deer or swerved off the roadway. In either instance, they argue, the juveniles’ intentional actions were substantially certain to cause personal injury, property damage or both, and therefore coverage for their conduct was precluded by the “intentional acts” exclusions in the insurers’ policies.

Attorneys for Roby and Zachariah urge the Court to affirm the 10th District’s holding that the insurers were not entitled to summary judgment because pretrial pleadings in the case raised questions of material fact about the “certainty” of injury, and those questions must be resolved by a judge or jury based on an examination of factual evidence at trial. As an example, they point out that the deer decoy placed on the road was made of Styrofoam and weighed only 10-15 pounds, raising a reasonable question about whether a driver who struck it would suffer any appreciable injury. They also assert that the location in which the decoy was placed on the roadway unquestionably allowed room for oncoming vehicles to drive around it without injury, because at least two cars did so before Roby’s vehicle ran off the road.

The appellees also argue that past Ohio court decisions in similar cases have limited the grant of summary judgment denying insurance coverage based on “implied intent to injure” only in cases involving a deliberate physical or sexual assault by a policyholder on an injured party, the firing of multiple gunshots into an occupied car, or similar circumstances in which there is no reasonable question regarding whether the insured person’s actions were intended to cause injury. In this case, they assert, the 10th District correctly found there was no evidence showing that the juveniles actually intended to cause injury to Roby or Zachariah, and held that the question of how “certain” their actions were to cause injury to someone is an issue of fact that must be determined by a judge or jury.

Contacts
Daniel J. Hurley, 614.229.4492, for Allstate Insurance Company.

Keith M. Carr, 614.478.6000 and Paul O. Scott, 614.460.1633, for Robert Roby and Dustin Zachariah.

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In Action to Detach Property From City, Should Court Consider Reduced Tax Rate Based on Agricultural Use?

Wallace R. Campbell et al. v. City of Carlisle, Case no. 2010-0209
12th District Court of Appeals (Warren County)

ISSUE:  Under R.C. 709.42, a court ruling on  a property owner’s petition to detach farm land from its present annexation to a city must determine whether the owner’s current and future municipal taxes are “in substantial excess of the benefits conferred on the landowner” by the municipality. In this case, the Supreme Court is asked to rule on whether a court making such a determination should compare the benefits received by the owner from the city to the actual tax paid by the owner under a “current agricultural use” valuation of the land, or instead should compare the benefits received from the city to the tax payable on the property at its true, non-agricultural market value.

BACKGROUND:  Helen and Wallace Campbell own approximately 40 acres of land located within the city of Carlisle in Warren County. The land is used exclusively for farming.  The parties agree that if the property were taxed at its true market value for non-agricultural purposes, the Campbells would owe annual property tax of approximately $12,538.  Because the Campbells file an application every year and receive a reduced current agricultural use valuation (CAUV) for the property, they actually pay only $172 per year in property tax.

In 2007, the Campbells filed a petition in the Warren County Court of Common Pleas seeking to detach their property from the city for the stated purpose of protecting its future use as farmland  The city opposed the proposed detachment. Following a trial at which the Campbells were required to establish four factors set forth in R.C. 709.42, the common pleas court denied the petition for detachment. It its opinion, the trial court found that the Campbells had not met the statutory requirement of showing that the current and future taxes they paid to Carlisle “substantially exceeded” the benefits the property received from the city. The court based its ruling on a determination that the only tax the Campbells paid to the city each year for the property at issue was the $172 in tax they paid based on its CAUV valuation.  

The Campbells appealed. On review, the 12th District Court of Appeals reversed the trial court’s holding and remanded the case for further proceedings.  The court of appeals held that the trial court erred by considering the reduced tax paid by the Campbells based on a CAUV valuation of their property, and instead should have compared the benefits received from the city against the taxes payable on the property at its true, fair market valuation. Carlisle sought and was granted Supreme Court review of the 12th District’s decision.

Attorneys for the city argue that in order to support a detachment order, the plain language of R.C. 709.42 requires a showing by a property owner that he or she “is taxed and will continue to be taxed thereon for municipal purposes in substantial excess of the benefits conferred on the landowner.”
They contend that the use of  the words “is taxed” in the statute clearly and unambiguously requires a court reviewing a petition for detachment to compare the actual amount of tax paid by a property owner against the benefits received from the city. 

They contend that although a number of alternative tax rates may be applicable to the same piece of property depending on how it is currently used and whether the owner obtained a reduction or exemption from taxation under some provision of state or local laws, that property “is taxed” for a given tax year at whatever rate the owner actually paid to the taxing authority.  In this case, they argue, the Campbells unquestionably paid only $172 per year in property tax to Carlisle, and that figure must therefore be used in determining whether the tax paid exceeds the value of municipal services provided to the property.

Attorneys for the Campbells argue that  the ruling of the 12th District, which was based on a review of the legislative histories of the detachment statute and the tax law amendment granting reduced valuation to land used for farming, correctly established the tax valuation that should apply in this case. As the 12th District observed, they say, when the detachment law was enacted in 1953, there was no reduced valuation for agricultural property and thus there was no question that courts reviewing detachment petitions must consider the tax payable on the true market value of such property. When the law providing for reduced CAUV tax valuations was adopted 21 years later in 1974, they assert, the legislature could have made a corresponding change requiring that courts apply the lower CAUV tax rate in detachment proceedings, but instead retained the 1953 language that clearly requires courts to look to the true market value of property in determining the owner’s taxes.

Contacts
David A. Chicarelli, 937.743.1500, for City of Carlisle.

Rupert E. Ruppert, 937.746.2832, for Helen and Wallace Campbell.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.