[Cite as State v. Harmon,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P. J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. William B. Hoffman, J. : -vs- : : Case No. 2016AP080042 DIANNA L. HARMON : : Defendant-Appellee : OPINION

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,

,

,

, citing State v.

Gustafson,

,

(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,

,

,

, quoting Green v.

United States,

,

,

(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,

,

(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,

,

,

(1983).

See, also, Moss,

,

. In Ohio v. Johnson,

,

,

(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,

(1820), the question under the Double Jeopardy

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

intent, see Missouri v. Hunter,

,

,

(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,

,

,

(1997); State v. Martello,

, 2002–Ohio–6661,

.

{¶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,

,

,

(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,

,

,

(1932). State v. Zima,

,

, 2004–Ohio–1807, ¶ 18, citing State v. Best,

,

(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,

,

(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,

,

(1980), overruled on

other grounds in State v. Crago,

,

(1990), superseded

by statute as stated in State v. Anderson,

,

,

.

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,

,

,

(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,

,

(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,

,

(1956), paragraphs one and

two of the syllabus; Accord, Goldberg v. Maloney,

,

,

.

{¶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,

,

(10th Dist. 1959); Accord, In re Gordon Estate, 5th

Dist. Richland No. 13-CA-77,

.

{¶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,

,

(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,

,

(9th Dist. 1993); In re Howard’s Estate,

,

(2nd Dist. 1947) (interpreting former Gen. Code 10506-67); In re

Leiby,

,

(2nd Dist. 1951), reversed on other

grounds,

,

. 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,

,

(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), 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,

,

, 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,

, 99–100,

,

(1997). Under it, this Court must first evaluate whether the legislature

enacting the law intended to impose a criminal or civil sanction.

. 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,

, 93–94,

,

(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,

(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.

at 99–100 (citing Kennedy v. Mendoza–Martinez,

, 168–69,

,

(1963)). These factors are neither dispositive nor exhaustive. Smith,

. 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,

(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,

,

,

. 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,

.

Wozniak v. Wozniak,

,

(1993); see, also, In re

Morrison’s Estate,

,

(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-Ohio-

4600¶19 citing, Rudloff v. Efstathiadis, 11th Dist. Trumbull No. 2002-T-119, 2003-Ohio-

6686, ¶ 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,

,

,

(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,

; Tewksbury,

.

{¶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,

,

,

(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,

. 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,

. 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,

.

2). Historically Regarded as Punishment.

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

as punishment. Hudson,

. 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,

,

(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,

,

,

, quoting Wozniak v.

Wozniak (1993),

,

. 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,

,

,

(10th Dist.)], ¶ 15;

Rinehart v. Bank One, Columbus, N.A. (1998),

,

. 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),

,

.

Art v. Erwin,

,

,

(10th Dist.);

See also, Kish v. Kish, 7th Dist. Mahoning No. 05 MA 186,

; In re Estate

of Clay, 3rd Dist. Mercer No. 10-98-12,

(Feb. 3, 1999), fn. 1; In re

Howard’s Estate,

,

(2nd Dist. 1947); Lindquist V. Hayes,

,

(6th Dist. 1926); State ex rel. Snearer v. Packer,

,

,

(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 non-

punitive 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,

(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,

. 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,

[

(1996)] (internal quotation marks omitted;

alteration in original).” Smith v. Doe,

,

,

(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,

.

{¶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,

(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.”

; accord Gardner v.

City of Columbus,

(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,

. 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,

; State v. Garretson, 12th Dist. Warren No. CA98-03-023,

(Dec.

7, 1998); Kasick v. Kobelak,

,

,

(8th

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

of Popp,

,

(8th Dist. 1994) [Rules of Civil

Procedure govern proceeding under R.C. 2109.50]; Wozniak v. Wozniak,

,

(9th Dist. 1993); In re Leiby’s Estate,

,

(2nd Dist. 1951) rev’d on other grounds,

,

(1952); In re Meyer’s Estate,

,

(Probate

Ct. 1948); In re: Howard’s Estate,

,

, 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