While the statute of limitations for rape and kidnapping expired after six years, the Logan County prosecutor argued Ohio law still allowed Bortree to be charged with attempted aggravated murder. Bortree was convicted in 2020 and sentenced to 11 years in prison. The Third Ohio District Court of Appeals upheld that conviction and Bortree appealed to the state high court.
Ohio law is clear that the statute of limitations for attempted aggravated murder runs out after six years, Justice Michael Donnelly said in his opinion. He said that in Bortree's case, this fact has resulted in “a grave injustice,” but said the court does not have the authority to rewrite state law.
Logan County Prosecutor Eric Stewart called the ruling “an extremely unjust outcome.”
“Our office, the investigators and the victims are very disappointed in the decision,” Stewart said.
A judge has already filed the paperwork vacating Bortree's conviction and he should be out of prison soon, said Holly Cline, one of Bortree's attorneys.
Bortree's legal team was pleased the court backed its long-time position that his prosecution came too late under Ohio law, Cline said.
“The Ohio Supreme Court fulfilled its constitutional duty in this case by applying that law as it is written,” she said.
There is no statute of limitations in Ohio for the crimes of aggravated murder or murder, and those sections of Ohio law include attempts of such crimes, Stewart argued before the state Supreme Court in June.
The statute of limitations for attempted burglary is 20 years, Stewart said at the time, noting the appeals court called a shorter time limit for attempted aggravated murder “an absurd result.”
Bortree stalked the victim, kidnapped her at gunpoint, sexually assaulted her, slit her throat and left her for dead, Stewart said.
“The only reason that she’s alive is because he barely, by millimeters, missed hitting her carotid artery,” he said.
But Tyack successfully argued that the state had waited too long to charge his client. Because Ohio law does not specifically define a limit for attempted aggravated murder or attempted murder, the statute of limitations on that charge — six years — had expired, Tyack told the court.
“The General Assembly has never stated that these should have any other statute of limitations than the default for a felony of six years,” Tyack said.
Although some DNA tracing was done over the years on the case, authorities finally connected Bortree to the attack in 2019 using a technique known as genetic genealogy, in which relatives of a suspect are traced by uploading the suspect’s DNA to public genealogy sites.
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Samantha Hendrickson, a corps member for the Associated Press/Report for America Statehouse News Initiative, contributed to this report.