[Cite as State v. Harmon, 2017-Ohio-320.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellant 

-vsDIANNA L. HARMON 

 Defendant-Appellee 

JUDGES: 

: Hon. Patricia A. Delaney, P. J. 

: Hon. W. Scott Gwin, J. 

: Hon. William B. Hoffman, J. 

: 

: 

: Case No. 2016AP080042 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas 

County Court of Common Pleas, Case No. 

2014CR070140 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: January 26, 2017 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

R. SCOTT DEEDRICK DAN GUINN 

Assistant Prosecuting Attorney 104 South Broadway 

125 East High Avenue New Philadelphia, OH 44663 

New Philadelphia, OH 44663 
Tuscarawas County, Case No. 2016AP080042 2 

Gwin, J., 

{¶1} Appellant State of Ohio appeals from the August 17, 2016 judgment entry 

of the Tuscarawas County Court of Common Pleas dismissing the felony indictment 

against appellee Dianna L. Harmon [“Harmon”]. 

Facts and Procedural History

{¶2} A concealment action was filed pursuant to Ohio Revised Code 2109.50 in 

the Tuscarawas County Court of Common Pleas Probate Division by the court appointed 

fiduciary on June 18, 2013, in the Estate of Paul Harmon, against Harmon and three other 

family members. In the June 3, 2014, Magistrate's Decision, adopted by the Court on 

June 26, 2014, Harmon was found guilty of embezzling funds from the estate and both 

her and her husband were held jointly and severally liable for the misappropriated funds 

with the statutorily provided penalty of 10%. 

{¶3} On July 2, 2014, Harmon was indicted by the Tuscarawas County Grand 

Jury on two counts grand theft in violation of R.C. 2913.02(A)(2) and (3), felonies of the 

fourth degree. These offenses are punishable by a prison term of six to eighteen months 

and a fine of not more than $5,000. 

{¶4} On July 18, 2016, Harmon filed a motion to bar prosecution on the 

indictment, pursuant to the double jeopardy clause. On August 17, 2016, the trial court 

granted the motion and dismissed the indictment with prejudice. 

Assignment of Error 

{¶5} The state raises one assignment of error, 
Tuscarawas County, Case No. 2016AP080042 3 

{¶6} “I. THE COURT BELOW ERRED AS A MATTER OF LAW IN DISMISSING 

THE INDICTMENT AGAINST APPELLEE AND BARRING PROSECUTION BASED 

UPON THE DOUBLE JEOPARDY CLAUSE.” 

Law and Analysis

{¶7} There is no dispute as to the facts underlying this matter. The only issue is 

a matter of law, whether the Court below erred in granting Harmon’s motion dismissing 

the indictment based upon a double jeopardy prohibition upon the ground that the finding 

of guilty in the concealment action in the probate court pursuant to R.C. 2109.52 barred 

the subsequent criminal proceedings. 

{¶8} “The Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution and Section 10, Article I of the Ohio Constitution protects criminal defendants 

against multiple prosecutions for the same offense. This court has recognized that ‘[t]he 

protections afforded by the two Double Jeopardy Clauses are coextensive.’” State v. 

Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250, ¶ 7, citing State v. 

Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435(1996). 

{¶9} The principle behind the Double Jeopardy Clause “‘is that the State with all 

its resources and power should not be allowed to make repeated attempts to convict an 

individual for the alleged offense, thereby subjecting him to embarrassment, expense and 

ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well 

as enhancing the possibility that even though innocent he may be found guilty.’” State v. 

Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, 893 N.E.2d 818, ¶ 11, quoting Green v. 

United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 2 L.Ed.2d 199(1957). The federal 

and state constitutions' double jeopardy protection further guards citizens against 
Tuscarawas County, Case No. 2016AP080042 4 

cumulative punishments for the “same offense.” State v. Moss, 69 Ohio St.2d 515, 518, 

433 N.E.2d 181(1982). “[T]he Double Jeopardy Clause does no more than prevent the 

sentencing court from prescribing greater punishment than the legislature intended.” 

Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542(1983). 

See, also, Moss, 69 Ohio St.2d at 518, 433 N.E.2d at 184-185. In Ohio v. Johnson, 467 

U.S. 493, 499, 104 S.Ct. 2536, 81 L.Ed.2d 425(1984), the United States Supreme Court 

stated: 

 Because the substantive power to prescribe crimes and determine 

punishments is vested with the legislature, United States v. Wiltberger, 5 

Wheat 76, 93, 5 L.Ed. 37 (1820), the question under the Double Jeopardy 

Clause whether punishments are ‘multiple’ is essentially one of legislative 

intent, see Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 

L.Ed.2d 535 (1983). 

{¶10} The Double Jeopardy Clause of the federal constitution “protects only 

against the imposition of multiple criminal punishments for the same offense, * * * and 

then only when such occurs in successive proceedings.” (Citations omitted.) Hudson v. 

United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450(1997); State v. Martello, 

97 Ohio St.3d 398, 2002–Ohio–6661, 780 N.E.2d 250, ¶8. 

{¶11} The Fifth Amendment bars successive prosecutions only if the two offenses 

for which the defendant is prosecuted are the “same” for double jeopardy purposes. 

Heath v. Alabama, 474 U.S. 82, 87, 106 S.Ct. 433, 88 L.Ed.2d 387(1985). In determining 

whether an accused is being successively prosecuted for the “same offense,” the Ohio 

Supreme Court has adopted the so called “same elements” test articulated in Blockburger 
Tuscarawas County, Case No. 2016AP080042 5 

v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). State v. Zima, 102 

Ohio St.3d 61, 806 N.E.2d 542, 2004–Ohio–1807, ¶ 18, citing State v. Best, 42 Ohio St.2d 

530, 330 N.E.2d 421 (1975), paragraph three of the syllabus. 

{¶12} Under Blockburger, “the Double Jeopardy Clause * * * prohibits successive 

prosecutions for the same criminal act or transaction under two criminal statutes unless 

each statute ‘requires proof of a fact which the other does not.’” State v. Tolbert, 60 Ohio 

St.3d 89, 90, 573 N.E.2d 617 (1991), quoting Blockburger at 304. “This test focuses upon 

the elements of the two statutory provisions, not upon the evidence proffered in a given 

case.” State v. Thomas, 61 Ohio St.2d 254, 259, 400 N.E.2d 897 (1980), overruled on 

other grounds in State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990), superseded 

by statute as stated in State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 

23.

Probate Court action for concealment of assets is not a substitute for 

criminal proceedings. 

{¶13} R.C. 2109.50 provides that the court or any interested party may file a 

proceeding in the probate court against any person alleged to have concealed, 

embezzled, conveyed away or in possession of monies or assets of an estate. A party 

who is found guilty of misappropriating estate assets can have a judgment in the amount 

of the proceeds or assets issued against them along with a statutory penalty of 10%. R.C. 

2109.52. The statutory concealment action has existed since before the adoption of the 

Ohio Revised Code. Art v. Erwin, 183 Ohio App.3d 651, 2009-Ohio-4306, 918 N.E.2d 

207(10th Dist.), ¶36. 
Tuscarawas County, Case No. 2016AP080042 6 

{¶14} Probate courts are courts of limited jurisdiction, and probate proceedings 

are thus restricted to those actions permitted by statute and by the Ohio Constitution. 

Corron v. Corron, 40 Ohio St.3d 75, 531 N.E.2d 708(1988), paragraph one of the syllabus. 

An R.C. 2109.50 proceeding for the discovery of concealed or embezzled assets of an 

estate is a special proceeding of a summary, inquisitorial character whose purpose is to 

facilitate the administration of estates by summarily retrieving assets that rightfully belong 

there. In re Estate of Fife, 164 Ohio St. 449, 132 N.E.2d 185(1956), paragraphs one and 

two of the syllabus; Accord, Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, 

855 N.E.2d 865, ¶23. 

{¶15} R.C. 2109.52 empowers the probate court to conduct a hearing in the 

concealment proceeding at which the court may determine questions of title concerning 

the allegedly concealed, embezzled, or conveyed estate assets, to determine whether 

the person accused is guilty and, if so, to enter judgment against the person found guilty 

for the amount of the money or value of assets with a 10% penalty Goldberg v. Maloney, 

¶ 27. The complainant must show, by a preponderance of the evidence, that the 

defendant received money or other assets of an estate claimed to have come into her 

hands and that she concealed, embezzled, or conveyed it away. In re Woods Estate, 

110 Ohio App. 277, 167 N.E.2d 122 (10th Dist.1959); Accord, In re Gordon Estate, 5th 

Dist. Richland No. 13-CA-77, 2014-Ohio-2078, ¶22. 

{¶16} The Ohio Supreme Court has held that an action under the statute 

necessarily involves a charge of wrongful or criminal conduct on the part of the person 

accused. In re Black’s Estate, 145 Ohio St. 405, 62 N.E.2d 90 (1945), paragraph two of 

the syllabus. However, even though the proceeding under R.C. 2109.50 is quasi-criminal 
Tuscarawas County, Case No. 2016AP080042 7 

in nature, it does not involve the litigation of a criminal act. Wozniak v. Wozniak, 90 Ohio 

App.3d 400, 412, 629 N.E.2d 500(9th Dist. 1993); In re Howard’s Estate, 79 Ohio App. 

203, 213, 72 N.E.2d 502(2nd Dist. 1947) (interpreting former Gen. Code 10506-67); In re 

Leiby, 60 Ohio Law Abs. 245, 101 N.E.2d 214, 217(2nd Dist. 1951), reversed on other 

grounds, 157 Ohio St. 374, 105 N.E.2d 583. As has been noted, 

The purpose of the statute under which this proceeding was taken 

was not to furnish a substitute either for criminal proceedings for 

embezzlement or for a civil suit to recover judgment for money owing to an 

executor of an estate, but rather to provide a speedy and effective method 

for the probate court to discover assets belonging to the estate of a 

decedent and to promptly secure same for the purpose of administration. 

Leonard v. State, ex rel. Scott, 3 Ohio App. 313, 314-325, 20 Ohio C.C. (N.S.) 340 (1st 

Dist. 1914)(interpreting former Gen. Code 10673). Our brethren in the Twelfth District 

have observed, 

 Next Appellant argues that the proceedings in the probate division 

were brought under R.C. 2109.52 which is a quasi-criminal proceeding 

which could have resulted in the imprisonment of Appellant and by reason 

thereof, double jeopardy applies to prevent the prosecution by the State. 

Appellant misconstrues R.C. 2109.50 et seq. R.C. 2109.52 authorizes the 

probate court to render judgment for money taken from the trust estate. 

There is no authority to imprison the wrongdoer for the theft. The only 

authority to confine is found in R.C. 2109.51 where the court is authorized 

to commit a person to the county jail for refusing to answer interrogatories. 
Tuscarawas County, Case No. 2016AP080042 8 

These statutes do not give the probate division jurisdiction to determine guilt 

or innocence of a crime or to punish on a determination of guilt. We reject 

Appellant’s double jeopardy argument. 

State v. Garretson, 12th Dist. Warren No. CA98-03-023, 1998 WL 873004(1998), at *2. 

The 10% penalty imposed under R.C. 2109.52 does not transform a 

concealment action into a criminal case. 

{¶17} Under R.C. 2109.52, if the accused is found guilty, “the probate court shall 

render judgment in favor of the fiduciary or if there is no fiduciary in this state, the probate 

court shall render judgment in favor of the state, against the person found guilty, for the 

amount of the moneys or the value of the personal property or choses in action concealed, 

embezzled, conveyed away, or held in possession, together with ten per cent penalty and 

all costs of the proceedings or complaint...” 

 The penalty is an extra burden which the accused must bear for his 

wrongful retention of such assets. While the proceeding may be quasi 

criminal in character, in our judgment this statute now provides for litigating 

a matter which does not involve a criminal act, but which carries with it more 

of the aspect of a civil than a criminal proceeding. 

In re Howard’s Estate, 79 Ohio App. 203, 72 N.E.2d 502, 507-508(2nd Dist. 

1947)(construing Gen. Code 10506-67). 

{¶18} The Supreme Court outlined the framework for distinguishing between civil 

and criminal penalties in Hudson v. United States, 522 U.S. 93, 99–100, 118 S.Ct. 488, 

139 L.Ed.2d 450 (1997). Under it, this Court must first evaluate whether the legislature 

enacting the law intended to impose a criminal or civil sanction. Id. at 99. The Court may 
Tuscarawas County, Case No. 2016AP080042 9 

consider three prongs in determining legislative intent: the purpose or objective of the 

legislation, the manner of its codification, and the enforcement procedures it establishes. 

Smith v. Doe, 538 U.S. 84, 93–94, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). 

{¶19} If the legislature intended to create a civil penalty, the Hudson test then asks 

whether the purpose or effect of the law was nonetheless “so punitive either in purpose 

or effect as to transform what was clearly intended as a civil remedy into a criminal 

penalty.” Hudson, 522 U.S. at 99 (citation and internal quotation marks omitted). The 

Supreme Court has identified several “useful guideposts” for that inquiry: 

1) Whether the sanction involves an affirmative disability or restraint; 

2) Whether it has historically been regarded as a punishment; 

3) Whether it comes into play only on a finding of scienter; 

4) Whether its operation will promote the traditional aims of punishment—

retribution and deterrence; 

5) Whether the behavior to which it applies is already a crime; 

6) Whether an alternative purpose to which it may rationally be connected 

is assignable for it; and 

7) Whether it appears excessive in relation to the alternative purpose 

assigned. 

Id. at 99–100 (citing Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 

9 L.Ed.2d 644 (1963)). These factors are neither dispositive nor exhaustive. Smith, 538 

U.S. at 97. The Supreme Court has instructed that they “must be considered in relation 

to the statute on its face, and only the clearest proof will suffice to override legislative 

intent.” Hudson, 522 U.S. at 100 (citation and internal quotation marks omitted). 
Tuscarawas County, Case No. 2016AP080042 10 

The Hudson test and R.C. 2109.52 

a. Legislative Intent. 

{¶20} As the Supreme Court has noted, the purpose of the action under R.C. 

2109.50 is to facilitate the administration of estates by summarily retrieving assets that 

rightfully belong there. Goldberg v. Maloney, 111 Ohio St.3d 211, 2006-Ohio-5485, 855 

N.E.2d 865, ¶23. However, 

 [T]he inquiry under R.C. 2109.50 focuses on the ownership of the 

asset and whether possession of the asset is being impermissibly 

concealed or withheld from the estate. Thus, a plaintiff has stated an 

actionable cause under R.C. 2109.50 if he alleges that the asset is the 

exclusive property of the estate and that the defendant has unauthorized 

possession of the asset or in some way has impermissibly disposed of it. 

See Fecteau, 171 Ohio St. at 125, 12 O.O.2d at 141, 167 N.E.2d at 893. 

Wozniak v. Wozniak, 90 Ohio App.3d 400, 407, 629 N.E.2d 500(1993); see, also, In re

Morrison’s Estate, 159 Ohio St. 285, 112 N.E.2d 13(1953), syllabus (“By the Constitution 

and statutory enactments, the Probate Court is invested with the power and jurisdiction 

to adjudicate a matter relating to the title to and status of personal property, where, during 

the administration of a decedent’s estate in such court, decedent’s widow files her petition 

asking for a declaration that certain personal property is an asset of the estate and must 

be administered as such, as against the claim that such property was effectually disposed 

of by the decedent during his lifetime through a written declaration of trust.”). Thus, a 

probate court has jurisdiction over an action brought pursuant to R.C. 2109.50 to recover 

funds passed to a third party by inter vivos transaction when the validity of the underlying 
Tuscarawas County, Case No. 2016AP080042 11 

transfer is challenged. Tewksbury v. Tewksbury, 4th Dist. Pike No. 07CA771, 2008-Ohio4600¶19 citing, Rudloff v. Efstathiadis, 11th Dist. Trumbull No. 2002-T-119, 2003-Ohio6686, ¶ 8. “[A]lthough property that passed by inter vivos gift or transaction is not property 

of the estate retrievable by an executor under R.C. 2109.50, the probate court can 

determine that the inter vivos gift or transaction was invalid, in which case the property is 

an asset of the estate retrievable by R.C. 2109.50.” Harrison v. Faseyitan, 159 Ohio 

App.3d 325, 2004-Ohio-6808, 823 N.E.2d 925(7th Dist.), ¶ 36. The donee must show, 

by clear and convincing evidence that the donor intended to make a gift. Fife, 164 Ohio 

St. at 456, 132 N.E.2d 185; Tewksbury, 2008-Ohio-4600, ¶34. 

{¶21} The concealment statute is contained with the Probate Code of the Ohio 

Revised Code, separate and apart from the criminal code. See, e.g., Kanas v. Hendricks, 

521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501(1997) (noting a state legislature’s 

“objective to create a civil proceeding [was] evidenced [in part] by its placement of the 

[legislation] within the [state] probate code, instead of the [state] criminal code”). 

{¶22} Having considered the statute, we find that the legislative intent was to 

create a civil sanction, despite the absence of language explicitly expressing that intent. 

b. Consideration of the relevant factors 

{¶23} Having found the intent to impose civil liability, the Court must now consider 

whether there is “the clearest proof” that the law, on its face, is so punitive as to override 

the legislative intent and, in effect, impose a criminal penalty. The Court does so by 

addressing each of the Hudson factors. 

1). Affirmative Disability of Restraint 
Tuscarawas County, Case No. 2016AP080042 12 

{¶24} Applying the first of the Hudson factors, the sanction imposed by R.C. 

2109.52 is not an affirmative disability or restraint. A “minor and indirect” disability is 

generally not considered punitive. Smith, 538 U.S. at 101. The only penalty the statute 

authorizes is a 10% penalty and all costs of the proceeding. It does not allow notation on 

an offender’s criminal record or any other penalty, and it certainly does not authorize 

physical detention or imprisonment, the “paradigmatic affirmative disability or restraint.” 

Smith, 538 U.S. at 101. The Supreme Court, in finding that a fine did not impose an 

affirmative disability or restraint, stated that “the payment of fixed or variable sums of 

money [is a] sanction which ha[s] been recognized as enforceable by civil proceedings 

since the original revenue law of 1789.” Hudson, 522 U.S. at 104. 

 2). Historically Regarded as Punishment. 

{¶25} Second, relatively small monetary fines have not historically been regarded 

as punishment. Hudson, 522 U.S. at 104. This factor suggests that the statute is civil in 

nature. 

 3). Requirement of Scienter. 

{¶26} The statute does require wrongful, fraudulent or criminal conduct. In re 

Black’s Estate, 145 Ohio St. 405, 62 N.E.2d 90 (1945), paragraph two of the syllabus. 

However, criminal intent is not always required, 

 Culpability under R.C. 2109.52 turns upon whether the defendant 

has unauthorized possession of an estate asset or in some way has 

impermissibly disposed of an estate asset. Goldberg v. Maloney, 111 Ohio 

St.3d 211, 2006-Ohio-5485, 855 N.E.2d 856, ¶ 35, quoting Wozniak v. 

Wozniak (1993), 90 Ohio App.3d 400, 407, 629 N.E.2d 500. A financial 
Tuscarawas County, Case No. 2016AP080042 13 

institution impermissibly disposes of an estate asset if it conveys an estate 

asset in its possession to an unauthorized individual. Art [v. Erwin, 183 

Ohio App.3d 651, 2009-Ohio-4306, 918 N.E.2d 207 (10th Dist.)], ¶ 15; 

Rinehart v. Bank One, Columbus, N.A. (1998), 125 Ohio App.3d 719, 728, 

709 N.E.2d 559. To prove a financial institution's culpability under R.C. 

2109.52 for such an action, the interested party must establish three 

elements: (1) the financial institution made a conveyance (2) of assets 

belonging to the trust estate (3) to a party unauthorized to take possession 

of the assets. Art at ¶ 15; In re Estate of Popp (1994), 94 Ohio App.3d 640, 

647, 641 N.E.2d 739. 

Art v. Erwin, 194 Ohio App.3d 421, 2011-Ohio-2371, 956 N.E.2d 879, ¶ 22 (10th Dist.); 

See also, Kish v. Kish, 7th Dist. Mahoning No. 05 MA 186, 2006-Ohio-4686; In re Estate 

of Clay, 3rd Dist. Mercer No. 10-98-12, 1999 WL 84318(Feb. 3, 1999), fn. 1; In re 

Howard’s Estate, 79 Ohio App. 203, 72 N.E.2d 502 (2nd Dist. 1947); Lindquist V. Hayes, 

22 Ohio App. 141, 144-145, 153 N.E. 297(6th Dist. 1926); State ex rel. Snearer v. Packer, 

4 Ohio Op. 347, 1 Ohio Supp. 156, 1935 WL 1432 (Prob. Ct. 1935). 

 4). Promoting the Traditional Goals of Punishment. 

{¶27} Fourth, the Court considers whether R.C. 2109.52 promotes the traditional 

aims of punishment, retribution and deterrence. The statute uses monetary penalties to 

deter behavior that threatens the assets of an estate. This factor therefore supports a 

contention that the statute imposes a criminal sanction.

 
Tuscarawas County, Case No. 2016AP080042 14 

5). The Conduct is Also a Crime. 

{¶28} The fifth factor similarly weighs against labeling the sanction as civil: 

embezzlement is a crime under the Ohio Revised Code. 

6). Rationally Related to an Alternative Purpose. 

{¶29} The sixth factor is whether R.C. 2109.52 is rationally connected to a nonpunitive purpose. The statute relates to preserving and protecting assets of a decedent’s 

estate by penalizing, and thus seeking to deter, those who would withhold assets from 

the estate. The statute need not be perfectly tailored to these non-punitive aims; it simply 

must be rationally related so as to avoid the appearance that the non-punitive purpose is 

“a sham or mere pretext.” Smith, 538 U.S. at 103 (internal quotation marks omitted). 

Because it is rationally related to the legitimate non-punitive purpose of protecting estate 

assets, this factor weighs in favor of labeling R.C. 2109.52 as civil. 

 7). Excessive in Relation to the Alternative Purpose. 

{¶30} The seventh, related inquiry is whether the penalties appear excessive to 

the non-punitive purpose. The Court finds that the penalty is not excessive, particularly 

in light of the fact that the statute does not impose criminal responsibility on the accused. 

This final factor weighs in favor of labeling the statute as civil. 

 8). Administrative Label for the Offense. 

{¶31} The Court notes one additional, troubling factor that was not addressed in 

the Hudson case. R.C. 2109.25 requires a finding of “guilty” to describe someone who 

violates the statute. “If the court finds the party guilty, the total monetary value of a 

judgment rendered under this section is to be reduced by the value of any goods 

specifically restored or returned in kind. Even though the value of the judgment is thus 
Tuscarawas County, Case No. 2016AP080042 15 

reduced, the total amount of the judgment, including penalty and costs (which include 

attorney’s fees) would not be satisfied by merely restoring the goods. Penalty and costs 

are not cancelled by the restoration of the goods.” In re Estate of Rotilio, 7th Dist. Belmont 

No 11 BE 9, 2013-Ohio-2878, ¶10. However, we note that it is universally held that the 

standard of proof in an action under R.C. 2109.2 is a preponderance of the evidence and 

not proof beyond a reasonable doubt. “The Act itself does not require the procedures 

adopted to contain any safeguards associated with the criminal process. That leads us 

to infer that the legislature envisioned the Act’s implementation to be civil and 

administrative. By contemplating “distinctly civil procedures,” the legislature “indicate[d] 

clearly that it intended a civil, not a criminal sanction.” [United States v.] Ursery, 518 U.S. 

[267,] at 289, 116 S.Ct. 2135 [135 L.Ed.2d 549(1996)] (internal quotation marks omitted; 

alteration in original).” Smith v. Doe, 538 U.S. 84, 96, 123 S.Ct. 1140, 155 L.Ed.2d 

164(2003). 

{¶32} To be cautious, we will nonetheless construe this factor against the labeling 

of the statute as civil. 

 c. Weighing the Factors to Determine the Law’s Purpose and Effect 

{¶33} In the case at bar, five of the seven Hudson factors suggest that the 

ordinance is civil. Included in this number is the inquiry into whether the ordinance serves 

a non-punitive purpose, a “most significant factor,” according to the Supreme Court. 

Smith, 538 U.S. at 102. 

{¶34} The two Hudson factors suggesting a criminal penalty—its function as a 

deterrent and the criminalization of the same conduct—are not sufficient to override 

legislative intent. As the Supreme Court has found, “the mere presence of [a deterrent] 
Tuscarawas County, Case No. 2016AP080042 16 

purpose is insufficient to render a sanction criminal, as deterrence may serve civil as well 

as criminal goals.” Hudson, 522 U.S. at 105 (internal quotation marks omitted). 

Additionally, the Supreme Court has held that the fact that conduct may also be criminal 

“is insufficient to render [the penalties] criminally punitive.” Id. at 105; accord Gardner v. 

City of Columbus, 841 F.2d 1272, 1277 (6th Cir. 1988) (“[T]he fact that a legislature has 

imposed both a civil and a criminal sanction for the same act does not transform the civil 

penalty into a criminal penalty.”). 

{¶35} Nor does this Court find that the statute’s use of the term “guilty” so 

transforms R.C. 2109.52 so as to render it “so punitive either in purpose or effect as to 

transform what was clearly intended as a civil remedy into a criminal penalty.” Hudson, 

522 U.S. at 99. We note that R.C. 2109.52 has historically been considered a civil action. 

In re Guardianship of Lindsey, 12th Dist. Preble No. CA2105-01-004, 2015-Ohio-4235, 

¶18-19; State v. Garretson, 12th Dist. Warren No. CA98-03-023, 1998 WL 873004(Dec. 

7, 1998); Kasick v. Kobelak, 184 Ohio App.3d 433, 2009-Ohio-5239, 921 N.E.2d 297 (8th 

Dist.), ¶13 [Rules of Civil Procedure govern proceeding under R.C. 2109.50]; In re Estate 

of Popp, 94 Ohio App.3d 640, 647, 641 N.E.2d 739(8th Dist. 1994) [Rules of Civil 

Procedure govern proceeding under R.C. 2109.50]; Wozniak v. Wozniak, 90 Ohio App.3d 

400, 411, 629 N.E.2d 500(9th Dist. 1993); In re Leiby’s Estate, 60 Ohio Law Abs. 245, 

248, 101 N.E.2d 214(2nd Dist. 1951) rev’d on other grounds, 157 Ohio St. 374, 105 

N.E.2d 583(1952); In re Meyer’s Estate, 53 Ohio Law Abs. 97, 82 N.E.2d 856(Probate 

Ct. 1948); In re: Howard’s Estate, 80 Ohio App. 80, 72 N.E.2d 502, 508(2nd Dist. 1947) 

[Rules of Civil Procedure govern proceeding under R.C. 2109.50]. 

{¶36} The Court therefore finds that the 10 % penalty is civil in nature. 
Tuscarawas County, Case No. 2016AP080042 17 

{¶37} Accordingly, the trial court erred in dismissing the felony indictment against 

Harmon. A concealment action under R.C. 2109.50 and R.C. 2109.52 does not bar a 

subsequent criminal proceeding under the double jeopardy clause. 

{¶38} The state’s sole assignment of error is sustained. 

{¶39} The judgment of the Tuscarawas County Court of Common Pleas is 

reversed. Pursuant to Section 3(B) (2), Article IV of the Ohio Constitution and R.C. 

2953.07, this case is remanded for proceedings in accordance with our opinion and the 

law. 

By Gwin, J., 

Delaney, P.J., and 

Hoffman, J., concur