[Cite as State v. Bess, 126 Ohio St.3d 350, 2010-Ohio-3292.] 

THE STATE OF OHIO, APPELLANT, v. BESS, APPELLEE. 

[Cite as State v. Bess, 126 Ohio St.3d 350, 2010-Ohio-3292.] 

While a person purposely avoids prosecution for a crime, R.C. 2901.13(G) tolls 

the statute of limitations for all crimes he or she committed.

(No. 2009-1196 — Submitted March 9, 2010 — Decided July 20, 2010.) 

APPEAL from the Court of Appeals for Cuyahoga County, No. 91429, 

182 Ohio App.3d 364, 2009-Ohio-2254, 912 N.E.2d 1162. 

__________________ 

SYLLABUS OF THE COURT

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. 

__________________ 

O’DONNELL, J. 

{¶ 1} The state of Ohio appeals from a judgment of the Eighth District 

Court of Appeals affirming the trial court’s dismissal of an indictment against 

Larry Bess as barred by the statute of limitations. The issue presented here 

concerns whether R.C. 2901.13(G), which provides that the statute of limitations 

shall not run during any time when the accused purposely avoids prosecution, 

tolls the limitations period for all offenses the accused committed, or whether it 

applies only to those offenses for which an indictment has been returned or 

underlying criminal activity has been discovered before the accused absconds. 

{¶ 2} Nothing in this statute 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 
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accused during the time when the accused purposely avoids prosecution for any 

offense. Accordingly, the judgment of the court of appeals is reversed, and the 

indictment is reinstated. 

Facts and Procedural History 

{¶ 3} In the early 1980s, Larry Bess began living with Theresa Ogden, 

and the couple married in 1986. Theresa had two children from a prior 

relationship: a son and a daughter. They lived at the Sunrise Cove Condominiums 

in North Royalton, where Bess began sexually abusing Theresa’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. 

{¶ 4} Bess also allegedly sexually abused Theresa’s son during this same 

time period, but when Detective Allen Napier of the North Royalton Police 

Department 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. 

{¶ 5} When Bess became aware of the investigation, he began making 

plans to change his identity and leave town. He told Theresa 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. 

{¶ 6} Bess and Theresa sold their home in North Royalton and split the 

proceeds. Bess then purchased a van, loaded his belongings, and left. When 

asked why she had not told authorities about Bess’s plans to abscond, Theresa 

testified, “He hadn’t been indicted or — you know. Nobody asked.” She did not 

try to stop him from leaving, because she did not believe that he had sexually 

abused her daughter. 

{¶ 7} On November 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 Theresa’s daughter. The 
January Term, 2010 

3 

Cuyahoga County Court of Common Pleas issued a capias for his arrest on 

November 27, 1989, when he failed to appear in court. Bess successfully 

concealed his identity and his whereabouts until March 5, 2007, when the FBI 

arrested him in Bogart, Georgia, where he had been living under an alias of 

Norman E. Weatherby. 

{¶ 8} Following Bess’s apprehension, Detective David Sword of the 

North Royalton Police Department began looking for witnesses in the case. He 

met with Theresa’s son, who eventually revealed that Bess had sexually abused 

him from 1982 to 1989. 

{¶ 9} Based on his statements, 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. 

{¶ 10} The trial court tried Bess for the offenses committed against 

Theresa’s daughter, which were not time-barred because he had purposely 

avoided that prosecution, and a jury subsequently found him guilty of those 

charges. The court of appeals affirmed. See State v. Bess, Cuyahoga App. No. 

91560, 2009-Ohio-2032. 

{¶ 11} Bess moved to dismiss the indictment that charged crimes against 

Theresa’s son, arguing that the six-year statute of limitations established by 

former R.C. 2901.13(A)(1)1

 had expired. The state objected, contending that R.C. 

2901.13(G)2 tolled the statute of limitations during the time when Bess had 

 

1. In 1998, the General Assembly enacted Sub.H.B. No. 49, effective 1999, which amended R.C. 

2901.13(A) to increase the statute of limitations for the offenses of rape and gross sexual 

imposition to 20 years. 147 Ohio Laws, Part I, 299-300. 

2. The version of R.C. 2901.13(G) in effect at the time that Bess allegedly committed the crimes 

and at the time that the statute of limitations would have expired if not tolled provided: “The 

period of limitation shall not run during any time when the accused purposely avoids prosecution. 

Proof that the accused absented himself from this state or concealed his identity or whereabouts is 

prima-facie evidence of his purpose to avoid prosecution.” Am.Sub.H.B. No. 511, 134 Ohio Laws, 
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purposely avoided prosecution. The trial court granted Bess’s motion and 

dismissed the indictment relating to charges involving crimes against Theresa’s 

son, finding that Bess had not purposely avoided prosecution for those alleged 

crimes. 

{¶ 12} On appeal, the court of appeals affirmed the judgment of the trial 

court. Relying on State v. McGraw (June 16, 1994), Cuyahoga App. No. 65202, 

the author of the appellate court opinion3

 concluded that Bess’s flight and his 

concealment from prosecution for the sexual abuse of Theresa’s 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 Theresa’s son, which the state learned 

about after Bess’s apprehension. 

{¶ 13} The state appealed, and we agreed to address the following 

proposition of law: “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.” 

{¶ 14} The state contends that R.C. 2901.13(G) tolls the statute of 

limitations for “any and all prosecutions against an accused who purposely avoids 

prosecution,” noting that this statute contains no language that expressly limits 

tolling to those prosecutions that the accused specifically intended to avoid. 

According to the state, the purpose of the statute of limitations is to discourage 

inefficient or dilatory law enforcement, not to permit offenders to evade 

responsibility for criminal conduct; thus, tolling should not apply when the 

offender’s action causes the delay in prosecution. 

 

Part II, 1866, 1896-1897. The General Assembly subsequently amended R.C. 2901.13(G) to 

incorporate gender-neutral language. 

3. The author’s opinion in the court of appeals did not receive a second vote. A second judge 

concurred in judgment only and a third judge on the panel dissented. 
January Term, 2010 

5 

{¶ 15} Bess, on the other hand, asserts that R.C. 2901.13(G) tolls the 

statute of limitations only when the evidence shows that “the accused left the 

jurisdiction purposefully to avoid the offense charged.” He maintains that both 

the rule of lenity, which requires criminal statutes to be strictly construed against 

the state and liberally construed in favor of the accused, and the purpose of a 

statute of limitations in general – to protect the accused from having to defend 

against stale charges – support his construction of the statute. Bess also notes that 

Theresa’s son did not report abuse to anyone before Bess was apprehended, which 

he now suggests shows that he could not have purposely avoided prosecution for 

those charges. 

{¶ 16} Thus, the issue is whether R.C. 2901.13(G) tolls the limitations 

period of all crimes allegedly committed by an accused during the time the 

accused purposefully avoids prosecution, or whether it applies only to the 

offenses the accused specifically intended to avoid at the time the accused 

absconded. 

Law and Analysis 

{¶ 17} R.C. 2901.13(G) provides: “The period of limitation shall not run 

during any time when the accused purposely avoids prosecution. Proof that the 

accused departed this state or concealed the accused’s identity or whereabouts is 

prima-facie evidence of the accused’s purpose to avoid prosecution.” 

{¶ 18} This case presents a question of statutory interpretation of the term 

“prosecution” as used in R.C. 2901.13(G). As we explained in State v. Buehler, 

113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124, in construing statutes, “ 

‘our paramount concern is the legislative intent in enacting the statute.’ State ex 

rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, 

¶ 21. Furthermore, ‘[i]n determining this intent, we first review the statutory 

language, reading words and phrases in context and construing them according to 

the rules of grammar and common usage.’ Id.” Buehler at ¶ 29. Thus, as the 
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court stated in State v. Teamer (1998), 82 Ohio St.3d 490, 491, 696 N.E.2d 1049, 

“[w]e must give effect to the words of a statute and may not modify an 

unambiguous statute by deleting words used or inserting words not used.” 

{¶ 19} As Bess argues, the word “prosecution” could refer to a particular 

prosecution, that is, “[a] criminal proceeding in which an accused person is tried.” 

Black’s Law Dictionary (8th Ed.2004) 1258. If “prosecution” is defined this way, 

tolling occurs only when a person avoids prosecution for specific charges. 

{¶ 20} The word “prosecution,” however, could also refer to the more 

general process by which an accused is tried and punished for criminal activity. 

See Thomas v. Peoria (C.A.7, 2009), 580 F.3d 633, 638-639 (“ ‘Prosecution’ * * 

* just means law enforcement by public officers”); Merriam-Webster’s New 

Collegiate Dictionary (11th Ed.2003) (defining “prosecution” to mean “the act or 

process of prosecuting”). If this more general definition of “prosecution” was 

intended by the General Assembly, then the statute encompasses all offenses 

committed by the accused and tolls the crimes’ statute of limitations when an 

accused leaves the state or conceals his or her identity or whereabouts with the 

purpose of avoiding being prosecuted for any crime. 

{¶ 21} The context in which the word “prosecution” is used in R.C. 

2901.13(G) reveals that the word refers to the more general process by which an 

accused is tried and punished for alleged criminal activity, not a specific 

proceeding against an accused, and the statute of limitations is tolled when an 

accused acts to purposely avoid being prosecuted for any offense. 

{¶ 22} While this is a question of first impression in our court, federal 

courts interpreting similar language in Section 1073, Title 18, U.S.Code, have 

defined the words “to avoid prosecution” to mean “ ‘to avoid being prosecuted.’ ” 

United States v. Frank (C.A.3, 1988), 864 F.2d 992, 1007, quoting United States 

v. Bando (C.A.2, 1957), 244 F.2d 833, 843; see also Lupino v. United States 

(C.A.8, 1959), 268 F.2d 799, 801; United States v. McKinney (D.Md.1992) 785 F. 
January Term, 2010 

7 

Supp. 1214, 1218. These courts have explained that Section 1073, which 

criminalizes crossing state lines with the intent to avoid prosecution, does not 

require the existence of a pending prosecution, but rather “[i]t is sufficient if the 

fleeing felon is ‘subject to prosecution.’ ” Bando, 244 F.2d at 843. Cf. State v. 

Gleason (Iowa 1988), 431 N.W.2d 363, 364 (defining unlawful flight “to avoid 

prosecution” in an Iowa statute to mean flight “which was to prevent even the 

occurrence of prosecution”). 

{¶ 23} Notably, R.C. 2901.13(G) contains no language suggesting that its 

application should be limited only to those cases when the accused sought to 

avoid a particular prosecution. Nor is there language suggesting a limitation to 

only those prosecutions that had been commenced before the accused absconded 

or to those cases when the state can prove that the accused intended to avoid 

prosecution for a specific crime. The lack of any qualifying or limiting language 

reveals the legislature’s intent to toll the statute of limitations with respect to all 

offenses during the time when an accused purposely avoids prosecution for any 

offense. 

{¶ 24} Moreover, the manifest purpose of R.C. 2901.13(G) is to prevent 

the accused from benefiting from the statute of limitations when he or she has 

purposely acted to avoid being prosecuted, thereby causing the state to fail to 

commence a timely prosecution. Importantly, it is the actions of the accused in 

avoiding prosecution, not the actions of the state in commencing a prosecution, 

that triggers the tolling of the statute of limitations. Thus, the General Assembly 

did not intend to limit tolling to only those offenses that authorities knew about at 

the time the accused absconded while allowing the statute of limitations to run on 

undiscovered crimes. 

{¶ 25} Our construction of R.C. 2901.13(G) accords with the General 

Assembly’s intent in enacting the statute of limitations in R.C. 2901.13(A). As we 

explained in State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., 
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L.P.A. (1999), 85 Ohio St.3d 582, 709 N.E.2d 1192, the purpose of a statute of 

limitations is “to discourage inefficient or dilatory law enforcement rather than to 

give offenders the chance to avoid criminal responsibility for their conduct.” Id. 

at 586, citing State v. Hensley (1991), 59 Ohio St.3d 136, 138, 571 N.E.2d 711. A 

statute of limitations “ ‘protect[s] individuals from having to defend themselves 

against charges when the basic facts may have become obscured by the passage of 

time and to minimize the danger of official punishment because of acts in the fardistant past.’ ” Id., quoting Toussie v. United States (1970), 397 U.S. 112, 114-

115, 90 S.Ct. 858, 25 L.Ed.2d 156. 

{¶ 26} These statutory purposes are not furthered, however, when the 

accused purposely avoids prosecution, because it is the conduct of the accused, 

not a lack of diligence on the part of the state, that causes the delay in the 

prosecution. Thus, an accused who purposefully avoids prosecution cannot 

complain of prejudice resulting from the failure of the state to promptly 

commence the prosecution or from the unavailability of evidence as a result of the 

passage of time. Just as the statute of limitations creates an incentive for the 

prompt investigation of suspected criminal activity, tolling of the limitations 

period during any time when the accused purposely avoids prosecution reduces 

the incentive for the accused to abscond from justice. 

{¶ 27} Federal caselaw construing Section 3290, Title 18, U.S.Code, the 

federal tolling statute, provides further support for our interpretation of R.C. 

2901.13(G). We recognize that Section 3290, which provides that “[n]o statute of 

limitations shall extend to any person fleeing from justice,” is phrased differently 

from R.C. 2901.13(G). However, federal courts hold that Section 3290 tolls the 

federal statute of limitations when “the defendant concealed himself with the 

intent to avoid prosecution.” (Emphasis added.) United States v. Greever (C.A.6, 

1998), 134 F.3d 777, 780; see also Streep v. United States (1895), 160 U.S. 128, 

133, 16 S.Ct. 244, 40 L.Ed. 365 (“In order to constitute a fleeing from justice, * * 
January Term, 2010 

9 

* [i]t is sufficient that there is a flight with the intention of avoiding being 

prosecuted, whether a prosecution has or has not been actually begun”). Thus, 

because Section 3290 is substantively equivalent to R.C. 2901.13(G), federal 

caselaw analyzing Section 3290 provides persuasive authority in construing R.C. 

2901.13(G). 

{¶ 28} Federal appellate courts have held that Section 3290 tolls the 

statute of limitations for all federal crimes during the time of a person’s flight 

from justice, even if the person intended to avoid prosecution only on unrelated

state or federal crimes. The Tenth Circuit Court of Appeals has explained that 

“the fact that appellee was fleeing prosecution from unrelated state crimes offers 

him no assistance in his attempt to take advantage of the federal statute of 

limitations. Appellee was fleeing justice – be it state or federal – and thereby 

triggered the tolling provision of § 3290; he cannot now have the privilege of the 

federal statute of limitations.” United States v. Morgan (C.A.10, 1991), 922 F.2d 

1495, 1499. See also United States v. Hoffman (C.A.6, 1997), 124 F.3d 200 

(Table), 1997 WL 476513 (holding that the accused’s flight to avoid prosecution 

on state child-abuse charges in California tolled the statute of limitations for a 

federal tax offense); United States v. Rivera-Ventura (C.A.2, 1995), 72 F.3d 277, 

283 (“when a defendant has been indicted by a federal grand jury in one district 

and is unaware of that indictment, his flight to avoid prosecution in a different 

federal district under an unrelated federal indictment of which he is aware tolls 

the running of the statute on the charges of which he is unaware”). 

{¶ 29} Federal courts thus do not require a specific intent to avoid a 

particular prosecution for Section 3290 to toll the statute of limitations. Rather, as 

the Seventh Circuit Court of Appeals stated in United States v. Marshall (C.A.7, 

1988), 856 F.2d 896, 900, “[t]he tolling statute reflects the congressional belief 

that where the defendant impedes the discovery and prosecution of his criminal 

conduct by ‘fleeing from justice,’ his right to avoid prosecution for distant 
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offenses is diminished while the government's need for additional discovery time 

is strengthened.” 

{¶ 30} For these reasons, we hold that 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.

Conclusion

{¶ 31} The legislature has mandated that the period of limitations shall 

not run during any time when the accused purposely avoids prosecution. 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’s 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. 

{¶ 32} Thus, 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, regardless of whether an indictment has been 

returned or whether underlying criminal activity has been discovered. Because 

the court of appeals concluded that the statute of limitations had expired in this 

case notwithstanding Bess’s conduct in avoiding prosecution, that judgment is 

reversed and the cause is remanded to the trial court for further proceedings. 

Judgment accordingly. 

 LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur. 
January Term, 2010 

11 

 PFEIFER and LANZINGER, JJ., dissent. 

 BROWN, C.J., not participating. 

__________________ 

LANZINGER, J., dissenting. 

{¶ 33} I dissent because the majority’s broad interpretation of R.C. 

2901.13(G) violates the 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.” 

{¶ 34} The majority opinion frankly admits: “As Bess argues, the word 

‘prosecution’ could refer to a particular prosecution, that is, ‘[a] criminal 

proceeding in which an accused person is tried.’ Black’s Law Dictionary (8th 

Ed.2004) 1258. If ‘prosecution’ is defined this way, tolling occurs only when a 

person avoids prosecution for specific charges.” (Emphasis added.) Majority 

opinion at ¶ 19. Yet in spite of the fact that this is a reasonable construction of the 

statute, the majority continues by adopting the more favorable position for the 

state—that is, the general fugitive-from-justice interpretation that applies to a 

federal statute, Section 1073, Title 18, U.S.Code. 

{¶ 35} In enacting Section 1073, Title 18, U.S.Code, Congress elected to 

provide a number of different instances in which an alleged offender is deemed to 

be a fugitive from justice and may be prosecuted for fleeing. The language used 

in the federal statute suggests that Congress wanted the statute to be interpreted 

broadly, which it since has been. See United States v. Frank (C.A.3, 1988), 864 

F.2d 992, 1007. 

{¶ 36} But R.C. 2901.13(G) tolls the statute of limitations when “the 

accused purposely avoids prosecution.” The word “accused” implies that the 

person already has been implicated in a crime by someone. The mental state of 

“purposely” is defined in R.C. 2901.22(A): “A person acts purposely when it is 
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his specific intention to cause a certain result, or, when the gist of the offense is a 

prohibition against conduct of a certain nature, regardless of what the offender 

intends to accomplish thereby, it is his specific intention to engage in conduct of 

that nature.” The statute of limitations also explains when a “prosecution” begins: 

“A prosecution is commenced on the date an indictment is returned or an 

information filed, or on the date a lawful arrest without a warrant is made, or on 

the date a warrant, summons, citation, or other process is issued, whichever 

occurs first. 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. A prosecution is not commenced upon issuance of a 

warrant, summons, citation, or other process, unless reasonable diligence is 

exercised to execute the same.” R.C. 2901.13(E). The tolling of the statute of 

limitations therefore begins when an alleged offender purposely flees the 

jurisdiction to avoid a particular indictment or information. 

{¶ 37} The language chosen by the General Assembly comports with the 

position advanced by the defense: tolling occurs when a person avoids 

prosecution for specific charges. Although a case may be, and has been, made for 

the state’s alternative theory, I cannot subscribe to the idea that the limitations 

period is tolled for all crimes that an accused may have committed before the 

period that an accused avoids prosecution for a specific charge. 

{¶ 38} Bess was convicted of three counts of rape and two counts of gross 

sexual imposition as a result of his stepdaughter’s accusations that were made in 

1989. State v. Bess, 8th Dist. No. 91560, 2009-Ohio-2032. He purposely avoided 

that prosecution. When Bess left, there was no thought of an investigation into 

possible crimes against his stepson. The stepson had been interviewed and had 

denied even the possibility that his sister’s accusations were true. 

{¶ 39} Interpreting R.C. 2901.13(G) as suggested would not mean that an 

indictment or information would need to be filed against an accused before the 
January Term, 2010 

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statute of limitations would be tolled. The accused would need only know that an 

investigation is taking place or is likely to take place and that by leaving the 

jurisdiction, he or she is avoiding prosecution for that specific crime. 

{¶ 40} Bess’s absence from Ohio never prevented or interfered with an 

investigation from proceeding on this matter, for there had been no accusation 

relating to crimes against his stepson. Bess could not have purposely avoided 

prosecution for alleged crimes that were unknown to authorities. 

{¶ 41} 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. Toussie v. United States 

(1970), 397 U.S. 112, 114-115, 90 S.Ct. 858, 25 L.Ed.2d 156 (a statute of 

limitations “protect[s] individuals from having to defend themselves against 

charges when the basic facts may have become obscured by the passage of time”). 

{¶ 42} R.C. 2901.13(G) cannot toll the statute of limitations for a 

prosecution that has not yet been commenced against an accused. I respectfully 

dissent. 

 PFEIFER, J., concurs in the foregoing opinion. 

__________________ 

 William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan 

Regas, Assistant Prosecuting Attorney, for appellant. 

 David L. Doughten, for appellee. 

 Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, 

and Brandon J. Lester, Deputy Solicitor, urging reversal for amicus curiae Ohio 

Attorney General. 

 Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant 

Public Defender, urging affirmance for amicus curiae Ohio Public Defender. 

______________________