In re LoConti , 2012 Ohio 4847 ( 2012 )

[Cite as In re LoConti, 2012-Ohio-4847.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
IN RE: ANDREW N. LOCONTI, III
ANDREW N. LOCONTI, III
Applicant
Case No. V2011-60794
Commissioners:
Necol Russell-Washington, Presiding
William L. Byers IV
E. Joel Wesp
ORDER OF A THREE-COMMISSIONER PANEL
{¶1} On February 14, 2011, the applicant, Andrew N. LoConti, III, filed a compensation
application as the result of a criminal incident which occurred on September 25, 2010.
On April 22, 2011, the Attorney General issued a finding of fact and decision denying
the applicant’s claim asserting he engaged in a felony of violence resulting in a charge
of felonious assault with respect to an incident which occurred on July 12, 2008. The
applicant submitted a request for reconsideration. On September 8, 2011, the Attorney
General rendered a Final Decision finding no reason to modify the initial decision. On
October 7, 2011, the applicant filed a notice of appeal from the Final Decision of the
Attorney General. Hence, a hearing was held before this panel of commissioners on
April 4, 2012 at 1:15 p.m.
{¶2} The applicant and his attorney, Dennis LoConti, were in attendance while
Assistant Attorney General Rachel Huston represented the state of Ohio.
Case No. V2011-60794 - 2 - ORDER
{¶3} The Attorney General stated that the only issue in this case was whether the
applicant engaged in felonious conduct and such conduct should bar him from receiving
an award of reparations pursuant to R.C. 2743.60(E)(1)(c). The Attorney General
related that the applicant was involved in an altercation on July 12, 2008 wherein he
broke Mr. Larry White’s jaw. Even though the applicant was ultimately convicted of a
misdemeanor, the underlying conduct caused serious physical harm to Mr. White and
consequently it should be considered felonious in nature.
{¶4} The applicant stated on July 12, 2008, he was a guest at a backyard party, when a
person began making inappropriate remarks to his girlfriend. Whereupon, he was
pushed from behind and ended up on the ground. Larry White approached him with
clenched fists. The applicant, believing he was going to be assaulted, struck Mr. White
one time resulting in Mr. White sustaining a broken jaw. Subsequently, the police were
called to the scene after the applicant, his girlfriend and friends had fled.
Consequently, the police spoke with Larry White and his friends and subsequently the
applicant was charged with felonious assault within the Mentor Municipal Court. At the
arraignment, the prosecutor and the applicant’s attorney discussed this matter reviewing
the witness statements and the police report, and assessed that the applicant had been
incorrectly charged with felonious assault and the applicant had committed only a
misdemeanor.
{¶5} The Attorney General called Sergeant Mike Majernik of the Mentor Police
Department to testify. Sgt. Majernik stated that he supervised Patrol Officer Cole
during the time Patrol Officer Cole investigated the July 12, 2008 incident involving the
applicant. Sgt. Majernik detailed the investigation which led to the arrest of Andrew
Case No. V2011-60794 - 3 - ORDER
LoConti on the charge of felonious assault. Sgt. Majernik stated that an incident in
which a broken jaw had been sustained would be categorized as felonious assault.
{¶6} Upon cross examination, Sgt. Majernik admitted that of the individuals interviewed
after the incident only two asserted that they saw the applicant with a “brick” or “object”
in his hand. However, no “brick” or “object” was recovered at the scene. The officer
admitted that a broken jaw would result in a charge of a felonious assault based on the
severity of the injury. Sgt. Majernik stated his last involvement with this case was
sending the case to the prosecutor at the Mentor Municipal Court. Finally, Sgt.
Majernik testified after the charges were filed he never spoke to any of the injured
parties, their witnesses or Andrew LoConti. Whereupon, the testimony of Sgt. Majernik
was concluded.
{¶7} The applicant, Andrew LoConti, took the witness stand. Andrew acknowledged
that he was invited to a party on July 12, 2008. He arrived at the party with his
girlfriend and two other friends. The applicant related the following: sometime during
the evening Larry White made rude gestures and comments toward the applicant’s
girlfriend. Although the applicant told him to stop, Mr. White refused. At that time, he
was pushed from behind, as he attempted to get back up, Mr. White approached him
with clenched fists giving the impression he was going to assault the applicant so the
applicant struck Mr. White with his fist one time. The applicant related that he had no
object in his hand. Subsequently, a melee ensued. At that time, the applicant and his
friends left the party and were not there when police arrived.
{¶8} Andrew stated he spoke with a police officer one time via telephone the Sunday
after the incident concerning the events that occurred during the party. Finally, Andrew
Case No. V2011-60794 - 4 - ORDER
stated the only reason he struck Larry White was to protect himself from being
assaulted.
{¶9} Upon cross examination, Andrew LoConti admitted that Larry White had not
pushed him down and he acknowledged hitting Larry. Andrew stated he knowingly hit
Larry to prevent Larry from assaulting him.
{¶10} On redirect examination, Andrew stated he would not have struck Larry unless
Larry was attempting to assault him. Wherein the testimony of Andrew LoConti was
concluded.
{¶11} In closing the Attorney General stated that the only burden which the Attorney
General has to meet is whether it can be established by a preponderance of the
evidence that the applicant “engaged, within ten years prior to the criminally injurious
conduct that gave rise to the claim or during the pendency of the claim, in an offense of
violence.” The Attorney General asserts it is of no consequence whether the initial
charges were filed in Municipal or Common Pleas Court or whether the applicant later
pled guilty to a misdemeanor. Andrew LoConti admitted knowingly hitting Larry White
which resulted in Larry White sustaining a broken jaw. The Attorney General asserted
that the holding in State v. Jeffers, 11th Dist. No. 2007-L-011, 2008-Ohio-1894 is limited
to jury instructions in a criminal case. In the case at bar, self serving statements of
self-defense are not sufficient evidence to rebut the presumption that felonious conduct
occurred.
{¶12} In closing, the applicant stated that the decision in this case does not solely rest
on whether Larry White suffered a broken jaw. It is important that the mens rea be
addressed. Applicant stated the felonious assault statute states that no person shall
Case No. V2011-60794 - 5 - ORDER
knowingly cause physical injury. R.C. 2903.11(A)(1). The crux of this case is whether
the applicant knowingly caused physical injury to Larry White. There is case law that
supports the proposition that one who strikes another with a bare fist did not knowingly
cause serious physical injury, even though the result of the striking might have indeed
caused such an injury. Furthermore, no object or brick was ever identified or found by
police.
{¶13} The conviction for a misdemeanor is important since this conviction did not result
from a plea bargain, but rather the initial charge of felonious assault was withdrawn and
a new charge under a new case number was filed for misdemeanor assault, to which
Andrew LoConti pled ultimately no contest. The applicant asserts the Attorney General
has not satisfied the burden of proof with respect to a denial of this claim pursuant to
R.C. 2743.60(E)(1)(c).
{¶14} The Attorney General conceded that although R.C. 2903.11(A)(1) requires
knowingly causing physical harm, the applicant is still responsible for the natural and
foreseeable consequences of his actions. Again, the Attorney General asserted that
what happened on the criminal level is not relevant to the determination of this panel.
Whereupon, the hearing was concluded.
{¶15} R.C. 2743.60(E)(1)(c) states:
a. “(E)(1) Except as otherwise provided in division (E)(2) of this
section, the attorney general, a panel of commissioners, or a judge of the
court of claims shall not make an award to a claimant if any of the
following applies:
Case No. V2011-60794 - 6 - ORDER
b. “(c) It is proved by a preponderance of the evidence that the victim
or the claimant engaged, within ten years prior to the criminally injurious
conduct that gave rise to the claim or during the pendency of the claim, in
an offense of violence, a violation of section 2925.03 of the Revised Code,
or any substantially similar offense that also would constitute a felony
under the laws of this state, another state, or the United States.”
{¶16} R.C. 2903.11(A)(1) states:
a. “(A) No person shall knowingly do either of the following:
b. “(1) Cause serious physical harm to another or to another’s
unborn;”
c. “A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably
be of a certain nature.”
{¶17} R.C. 2901.22(B) states:
a. “A person has knowledge of circumstances when he is aware that
such circumstances probably exist.”
{¶18} “Self-defense is an affirmative defense, and the burden of proof, a
preponderance of the evidence, is the defendant’s. State v. Pannetti, 8th Dist. No.
73044 1998 Ohio App. LEXIS 4123, at *6, (Sept. 3, 1998) citing State v. Napier (1995),
105 Ohio App. 3d 713, 721. ‘Pursuant to this defense, one may use such force as the
circumstances require in order to defend against danger which one has good reason to
apprehend.’ Pannetti. at *6, citing State v. Fox, 36 Ohio App. 3d 78, 79, 520 N.E. 2d
1390 (9th Dist. 1987); Akron v. Dokes, 31 Ohio App. 3d 24, 25, 507 N.E. 2d 1158 (9th
Case No. V2011-60794 - 7 - ORDER
Dist. 1986); State v. McLeod, 82 Ohio App. 155, 157, 80 N.E. 2d 699 (9th Dist. 1948).
However, the defendant may not use more force than is reasonably necessary to
defend against the attack. State v. Vera, 8th Dist. No. 79367, 2002 Ohio App. LEXIS
980 (Mar. 7, 2002) at *18.” Jeffers, 2008 at ¶54. In Ohio, a defendant is justified in
using force in self-defense only if the defendant was not at fault in creating the violent
situation. See State v. Thomas (1977), 77 Ohio St. 3d 323, 326, 1997-Ohio-269, 673
N.E. 2d 1339, (1997).
{¶19} The Attorney General has the burden with respect to proof of the felony exclusion
contained in R.C. 2743.60(E)(1)(c) [exclusionary criteria R.C. 2743.60]. In re Williams,
V77-0739jud (3-26-79); and In re Brown, V78-3638jud (12-13-79).
{¶20} Black’s Law Dictionary Sixth Edition (1990) defines preponderance of the
evidence as: “evidence which is of greater weight or more convincing than the evidence
which is offered in opposition to it; that is, evidence which as a whole shows that the
fact sought to be proved is more probable than not.”
{¶21} Black’s Law Dictionary Sixth Edition (1990) defines burden of proof as: “the
necessity or duty of affirmatively proving fact or facts in dispute on an issue raised
between the parties in a cause. The obligation of a party to establish by evidence a
requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”
{¶22} The credibility of witnesses and the weight attributable to their testimony are
primarily matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E. 2d
212 (1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all
or any part of each witness’s testimony. State v. Antill, 176 Ohio St. 61, 197 N.E. 2d
548 (1964).
Case No. V2011-60794 - 8 - ORDER
{¶23} From review of the case file, the testimony of the witnesses, and the arguments
presented by counsel at the hearing, we find the Attorney General has failed to prove by
a preponderance of the evidence that the applicant’s claim should be denied pursuant
to R.C. 2743.60(E)(1)(c).
{¶24} We believe this case turns on the fact that although Andrew LoConti was initially
charged with felonious assault, after the prosecutor, with the applicant’s attorney, had
the opportunity to review the witness statements collected by police and hear Andrew’s
side of the events the charge of felonious assault was dismissed. A new misdemeanor
charge of assault was filed to which ultimately Andrew pled no contest. The difference
between the two charges is that felonious assault requires knowingly causing serious
physical harm where assault only requires knowing causing physical harm.
{¶25} The Attorney General’s position is that this panel should look to the result that the
punch caused, a broken jaw. The Attorney General contends a broken jaw is a serious
physical injury, accordingly, the applicant’s conduct constituted a felonious assault.
Conversely, the applicant argues that the panel’s focus should be on the intent Andrew
possessed at the time he struck the blow.
{¶26} We find based upon the credible testimony of Andrew LoConti that he was acting
in self-defense at the time he struck Larry White. Andrew reasonably believed he was
going to suffer physical injury if he did not defend himself. Furthermore, we cannot find
by a preponderance of the evidence that by striking Mr. White he intended to cause Mr.
White serious physical injury as is required by R.C. 2903.11(A)(1). Sufficient evidence
has not been presented to establish that Andrew possessed a brick or other object at
the time he struck Mr. White. We believe the initial charges were filed based on the
Case No. V2011-60794 - 9 - ORDER
statements of Mr. White and his friends and after review the prosecutor in Mentor came
to an informed decision that Andrew LoConti had been incorrectly charged. We believe
deference should be given to the prosecutor’s decision which allows us to reach the
conclusion that Andrew LoConti did not engage in violent felonious conduct as required
under R.C. 2743.60(E)(1)(c).
{¶27} Therefore, the September 8, 2011 decision of the Attorney General is reversed.
{¶28} IT IS THEREFORE ORDERED THAT
{¶29} The September 8, 2011 decision of the Attorney General is REVERSED and
judgment is rendered in favor of the applicant;
{¶30} This claim is remanded to the Attorney General for a decision concerning the
criminal conduct of September 25, 2010;
{¶31} This order is entered without prejudice to the applicant’s right to file a
supplemental compensation application within five years of this order pursuant to R.C.
2743.68;
{¶32} Costs are assumed by the court of claims victims of crime fund.
___________________________________
NECOL RUSSELL-WASHINGTON
Presiding Commissioner
Case No. V2011-60794 - 10 - ORDER
___________________________________
WILLIAM L. BYERS IV
Commissioner
___________________________________
E. JOEL WESP
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\June - Sept 2012\V2011-60794 LoConti.wpd\DRB-laa
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Lake County Prosecuting Attorney and to:
Filed 6-27-12
Jr. Vol. 2283, Pgs. 69-77
Sent to S.C. reporter 10-18-12