The Supreme Court of Ohio today vacated the conviction of a Logan County man, finding the statute of limitations to charge him with attempted aggravated murder ran out 20 years before his indictment.

In 2019, “genetic genealogy” led Logan County authorities to Ralph Bortree. He was charged with the kidnapping, rape, and attempted murder of 19-year-old Anita Clark in 1993. Clark survived after having her throat slashed with a knife. Because she lived, Bortree was prosecuted for attempted aggravated murder, rather than aggravated murder. While there is no statute of limitations for aggravated murder, the Court ruled the statute of limitations for attempted aggravated murder is six years.

“Under the particularly heinous set of facts in this case, the six-year statute of limitations that applies to attempted aggravated murder and attempted murder works a grave injustice,” Justice Michael P. Donnelly stated in the Court’s majority opinion. “However, we have no authority to rewrite the statute.” 

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, R. Patrick DeWine, and Jennifer Brunner joined Justice Donnelly’s opinion. Justices Patrick F. Fischer and Melody Stewart concurred in judgment only.

DNA Advancements Lead to Suspect
In July 1993, Clark was kidnapped at gunpoint while driving to work in rural Logan County. Her abductor drove her to a wooded area and raped her. After the assault, the stranger cut Clark’s throat with a knife and left her for dead by the side of the road. Clark was able to make it to a nearby home where the family called emergency services for help.

Clark gave the police a description of the perpetrator; the color, make, and model of his truck; and two letters on its license plate. Logan County sheriff’s deputies collected her shirt, which had a mixture of DNA from her and the attacker.. Law enforcement was unable to identify the assailant, and the case went cold until 2014.

In 2014, Logan County investigators submitted the shirt to the Ohio Bureau of Criminal Investigation (BCI) for DNA analysis. It did not yield any further evidence. In 2015, new technology allowed for a better DNA profile, which matched Clark’s assailant in a national crime database to an unknown assailant who committed a similar crime in nearby Sidney, Ohio, in 1992.

Law enforcement was still unable to develop any new leads until it turned to a private company in 2019 that performs genetic genealogy. That process finds relatives of a DNA donor by comparing the donor’s DNA with profiles submitted to genealogy databases by consumers researching their ancestry.

The genealogy company gave Logan County law enforcement the names of residents related to Clark’s assailant. That tip led to Bortree. Detectives collected cigarette butts Bortree discarded outside his workplace. The DNA on the cigarette butts matched the DNA on Clark’s shirt. Investigators obtained a search warrant and found a photo album, which had a picture of Bortree with a truck matching Clark’s description.

Suspect Challenged Charges
Bortree was arrested in August 2019 and indicted on two charges. He was charged under R.C. 2903.01(B) for aggravated murder and under R.C. 2923.02(A) for attempted aggravated murder, which is a first-degree felony. The Logan County Prosecutor’s Office did not indict Bortree for rape or kidnapping because the statute of limitations for those offenses had run out.

Bortree asked the Logan County Common Pleas Court to dismiss the charges because the indictment was filed 26 years after the offense. He argued that unless specified by law, the statute of limitations for a first-degree felony is six years. He maintained he did not murder Clark and that the time limit to charge him with attempting to murder her was six years.

The prosecutor’s office argued there is no statute of limitation for aggravated murder or murder, and that extends to murder attempts. The trial court agreed with the prosecutor, and a jury found Bortree guilty of attempted aggravated murder. He was sentenced to the maximum 11 years in prison.

Bortree appealed his conviction to the Third District Court of Appeals, which affirmed the decision. Bortree appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Analyzed Statutes of Limitations
Justice Donnelly explained the case required the Court to analyze the interplay of several state statutes. He noted R.C. 2903.01(B) considers aggravated murder to be an “unclassified” felony and has no statute of limitations. It is punishable by death or life in prison.

R.C. 2923.02 defines crimes that are attempted but not completed. Under that law, an attempt to commit aggravated murder or murder is a first-degree felony. Those offenses carry a mandatory prison term between three and 11 years.

The Court then examined the statute of limitations for the different crimes. Under R.C. 2901.13(A), there is no limit for murder, but a six-year limit for charging someone with the first-degree felony.

The prosecutor argued Bortree was indicted and prosecuted for aggravated murder, which has no statute of limitations. The office also noted the statute of limitations law included several exceptions creating longer time limits for other felonies, including a 20-year limit for attempted burglary and a 25-year limit for attempted sexual battery.

The prosecutor stated that the legislature is presumed to write laws with a “just and reasonable result,” and that the six-year limit for the more serious crime of attempted aggravated murder is an absurd result that the legislature cannot have intended.

“Contrary to the position of the state, Bortree was not prosecuted for aggravated murder pursuant to R.C. 2903.01, for the obvious reason that the victim had not been killed,” the Court stated. “Instead, the prosecution followed all the statutory requirements suitable for an attempted-felony offense rather than aggravated murder.”

The opinion stated the law leaves no ambiguity about which statute of limitations applies. Attempted aggravated murder is not listed as one of the felony offenses for which there is an exception the six-year limit, the Court stated.

“Because the General Assembly is the final arbiter of public policy, judicial policy preferences may not be used to override valid legislative enactments. We are, unfortunately, duty bound to reverse the judgment of the Third District Court of Appeals,” the opinion stated. 

The Court reversed the Third District’s decision and directed the trial court to vacate Bortree’s conviction.

2021-1254. State v. Bortree, Slip Opinion No. 2022-Ohio-3890.

View oral argument video of this case.

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