In re Murphy ( 2011 )

[Cite as In re Murphy, 2011-Ohio-7085.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Fourth Floor
Columbus, OH 43215
614.387.9860 or 1.800.824.8263
www.cco.state.oh.us
IN RE: GLENDA L. MURPHY
CHRISTOPHER M. CORBIN
SILVER R. CORBIN
Applicants
Case No. V2010-50167
Judge Joseph T. Clark
DECISION
{¶1} This matter came on to be considered upon the Attorney General’s appeal from
the May 6, 2011 order issued by the panel of commissioners. The panel’s
determination reversed the final decision of the Attorney General, which denied
applicant’s claim for an award of reparations pursuant to R.C. 2743.60(E)(1)(e)
based upon the finding that the decedent, Glenda L. Murphy, had tested positive
for cocaine at the time of her death.
{¶2} R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the Court
of Claims Commissioners that the requirements for an award have been met by
a preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR
63, 455 N.E.2d 1374. The Attorney General has the burden with respect to
proof of the felony exclusion contained in R.C. 2743.60(E)(1)(e) [exclusionary
criteria R.C. 2743.60]. In re Williams, V77-0739jud (3-26-79); and In re Brown,
V78-3638jud (12-13-79). The panel found, upon review of the evidence, that
the Attorney General failed to present sufficient evidence to meet his burden.
{¶3} The standard for reviewing claims that are appealed to the court is established
by R.C. 2743.61(C), which provides in pertinent part: “If upon hearing and
Case No. V2010-50167 - 2 - DECISION
consideration of the record and evidence, the judge decides that the decision of
the panel of commissioners is unreasonable or unlawful, the judge shall reverse
and vacate the decision or modify it and enter judgment on the claim. The
decision of the judge of the court of claims is final.”
{¶4} In its decision, the panel of commissioners noted that the only issue on appeal is
whether the decedent engaged in a violation of R.C. 2925.11 at the time of her
death which would disqualify applicants’ claims for an award of reparations
pursuant to R.C. 2743.60(E)(1)(e).
{¶5} R.C. 2743.60(E)(1)(e) provides, in pertinent part:
{¶6} “(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:
{¶7} “* * *
{¶8} “(e) It is proved by a preponderance of the evidence that the victim at the time of
the criminally injurious conduct that gave rise to the claim engaged in conduct
that was a felony violation of section 2925.11 of the Revised Code or engaged in
any substantially similar conduct that would constitute a felony under the laws of
this state, another state, or the United States.” (Emphasis added.)
{¶9} R.C. 2925.11 provides, in pertinent part, the following:
{¶10} “(A) No person shall knowingly obtain, possess, or use a controlled substance.
{¶11} “* * *
{¶12} “(C) Whoever violates division (A) of this section is guilty of one of the following:
{¶13} “(1) If the drug involved in the violation is a compound, mixture, preparation, or
substance included in schedule I or II, with the exception of marihuana, cocaine,
L.S.D., heroin, and hashish, whoever violates division (A) of this section is guilty
of aggravated possession of drugs. The penalty for the offense shall be
determined as follows:
Case No. V2010-50167 - 3 - DECISION
{¶14} “(a) Except as otherwise provided in division (C)(1)(b), (c), (d), or (e) of this
section, aggravated possession of drugs is a felony of the fifth degree.”
(Emphasis added.)
{¶15} R.C. 2925.01 provides, in part:
{¶16} “(X) ‘Cocaine’ means any of the following:
{¶17} “(1) A cocaine salt, isomer, or derivative, a salt of a cocaine isomer or derivative,
or the base form of cocaine;
{¶18} “(2) Coca leaves or a salt, compound, derivative, or preparation of coca leaves,
including ecgonine, a salt, isomer, or derivative of ecgonine, or a salt of an
isomer or derivative of ecgonine.”
{¶19} R.C. 3719.41 provides a list of Schedule II substances and provides, in pertinent
part, as follows:
{¶20} “(A) Narcotics-opium and opium derivatives
{¶21} “Unless specifically excepted under federal drug abuse control laws or unless
listed in another schedule, any of the following substances whether produced
directly or indirectly by extraction from substances of vegetable origin,
independently by means of chemical synthesis, or by a combination of extraction
and chemical synthesis:
{¶22} “* * *
{¶23} “(4) Coca leaves and any salt, compound, derivative, or preparation of coca
leaves (including cocaine and ecgonine, their salts, isomers, and derivatives, and
salts of those isomers and derivatives), and any salt, compound, derivative, or
preparation thereof that is chemically equivalent to or identical with any of these
substances, except that the substances shall not include decocainized coca
leaves or extraction of coca leaves, which extractions do not contain cocaine or
ecgonine.”
Case No. V2010-50167 - 4 - DECISION
{¶24} The panel of commissioners heard testimony from both Calvin McGuire, Chief
Toxicologist of the Franklin County Coroner’s Office, and Dr. John Wyman, Chief
Toxicologist at the Cuyahoga County Regional Forensic Laboratory. McGuire
testified that the decedent tested positive for methylecgonine and
bensoylecgonine (cocaine metabolites) and levamisole, a cutting agent for
cocaine. According to McGuire, the presence of cocaine metabolites in the
body could only be achieved by the ingestion or injection of cocaine. Dr.
Wyman testified that tests which detected cocaine metabolites in the decedent’s
body confirm her exposure to cocaine.
{¶25} At the judicial hearing, applicants argued that Dr. Wyman testified that the
toxicology report showed that the decedent had not used cocaine within six
hours of the criminally injurious conduct and that pursuant to In re Green,
V2003-40836jud (5-13-04), a “trace” amount of drugs is insufficient to satisfy the
Attorney General’s burden of proving by a preponderance of the evidence that
the decedent engaged in a violation of R.C. 2925.11 at the time of her death.
The court disagrees.
{¶26} As the panel noted in its decision, In re Green “was rendered when the
disqualification pursuant to R.C. 2925.11 was listed under the contributory
misconduct section of the statute, R.C. 2743.60(F). Consequently, under former
R.C. 2743.60(E) there had to be possession of a felony drug pursuant to R.C.
2925.11 plus a causal connection between the possession of the felony drug and
the resulting injury.” Inasmuch as the court’s determination in In re Green was
based upon former R.C. 2743.60(F), applicants’ reliance on In re Green is
misplaced.
{¶27} In this case, both of the toxicology experts concluded that the decedent tested
positive for cocaine metabolites. Applicants contend that a positive test for
cocaine metabolites alone is insufficient evidence to establish that the decedent
Case No. V2010-50167 - 5 - DECISION
was engaged in felony drug use or possession at the time of her death.
However, Ohio courts have consistently held that a positive test for cocaine
metabolites constitutes sufficient evidence for a conviction under R.C. 2925.11.
State v. Shrimplin (March 25, 1991), Knox App. No. 90-CA-32; State v.
McGowan (August 12, 1993), Cuyahoga App. No. 63491; State v. Scott (May 5,
1994), Cuyahoga App. No. No. 63234. “Whether that cocaine was in appellant's
pocket or in [her] urine was of no effect.” State v. Shrimplin, supra.
Furthermore, the court has previously held “the positive evaluation on the
toxicology report for the presence of cocaine proves by a preponderance of the
evidence that the applicant has committed a felonious act.” In re Dawson (1993),
63 Ohio Misc. 2d 79.
{¶28} Upon review of the file September 29, 2011in this matter, the court finds that the
Attorney General presented sufficient evidence to prove by a preponderance of
the evidence that the decedent engaged in a violation of R.C. 2925.11 at the
time of the criminally injurious conduct. Although the court sympathizes with
applicants for the loss of their mother, it is duty bound to follow the law.
{¶29} Based on the evidence and R.C. 2743.61, it is the court’s opinion that the
decision of the panel of commissioners was unlawful. Therefore, this court
reverses the decision of the three-commissioner panel, and hereby denies
applicants’ claim.
{¶30} Upon review of the evidence, the court finds the order of the panel of
commissioners must be reversed.
{¶31} ORDER
{¶32} IT IS HEREBY ORDERED THAT:
{¶33} The order of May 6, 2011, (Jr. Vol. 2278, Pages 102-103) is reversed;
{¶34} This claim is DENIED and judgment entered for the State of Ohio;
{¶35} Costs assumed by the reparations fund.
Case No. V2010-50167 - 6 - DECISION
JOSEPH T. CLARK
Judge
AMR/dms
A copy of the foregoing was personally served upon the Attorney General
and sent by regular mail to Franklin County Prosecuting Attorney and to:
Filed 9-29-11
Jr. Vol. 2280, Pg. 191
Sent to S.C. Reporter 7-19-13