In re Yates , 2011 Ohio 5293 ( 2011 )

[Cite as In re Yates, 2011-Ohio-5293.]
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: SHAQUILLE A. YATES
SHAQUILLE A. YATES
Applicant.
Case No. V2010-50451
Commissioners:
Lloyd Pierre-Louis, Presiding
Gregory P. Barwell
Susan G. Sheridan
ORDER OF A THREE-COMMISSIONER PANEL
{¶1}On October 15, 2009, the applicant filed a compensation application as the
result of being shot during a robbery. On February 8, 2010, the Attorney General
issued a finding of fact and decision denying the applicant’s claim for an award of
reparations based upon the fact the applicant engaged in substantial contributory
misconduct at the time of the incident. Specifically, the applicant was shot during an
illegal drug transaction. On February 18 and 26, 2010 the applicant submitted requests
for reconsideration. On April 20, 2010, the Attorney General rendered a Final Decision
finding no reason to modify the initial decision. On May 11, 2010, the applicant filed a
notice of appeal from the April 20, 2010 Final Decision of the Attorney General. Hence,
a hearing was held before this panel of commissioners on November 4, 2010 at 11:35
A.M.
{¶2}The applicant and his attorney Michael Falleur appeared at the hearing,
while Assistant Attorney General David Lockshaw represented the state of Ohio.
Case No. V2010-50451 - 2 - ORDER
{¶3}The sole issue in this case is whether the applicant engaged in substantial
contributory misconduct at the time of his injury. The Attorney General asserts that the
applicant made admissions against interest to hospital personnel that he was engaged
in a marijuana transaction at the time he was shot.
{¶4}The Attorney General called Dodie Allen, a licensed social worker who
worked at Nationwide Children’s Hospital to testify. She stated she spoke with
Shaquille Yates on the day of the incident and she recorded what was said. The
Attorney General presented the witness with State’s Exhibit A, a medical record dated
July 23, 2009 which also contained notes prepared by Ms. Allen. Ms. Allen was
directed to read the second paragraph of the document handed to her. She read the
following:
{¶5}“Patient admitted he had ‘a lot of cash’ on him. First stated he had $2000,
then said he had $1000. Initially told officer 1480 that he worked at Speedway
on College and Livingston and just likes to save his money. Later admitted
that he ‘bought 2 bags from my dude’ outside Kim’s store. Patient denied
smoking anything but noted he was about to (smiling). States he had walked
back to his car and he heard a guy say, ‘Keal Bro’, then heard gun clicked
(thought it was a high point 9.) States one dude was behind him and the other
walked around him and told him not to try to run. Patient reportedly had THC
in his pants pocket.”
{¶6}She related she heard Mr. Yates make these statements and would not
have recorded them if they had not been made.
{¶7}Upon cross-examination, Ms. Allen admitted she made notes about what
was said and after the document was prepared the notes were destroyed. She
admitted to taking notes from questions that she as well as the police asked the
applicant. Ms. Allen stated she could not explain the inconsistencies between her
notes and the report filed by the Columbus Police Department. Whereupon, Ms.
Allen’s testimony was concluded.
Case No. V2010-50451 - 3 - ORDER
{¶8}The applicant called Bertl Yates, the applicant’s mother, to testify. In the
summer in which Shaquille was injured he was attending Life Skills, a preparatory
course for high school graduation, and was also working at a Speedway gas station.
She stated Shaquille was saving his money and desired to open a bank account. On
the day of the incident he intended to open a bank account and his friend was going to
give him a ride to the bank. She related after she learned her son was shot she went
to the hospital. Ms. Yates recollected the events surrounding the hospital treatment.
{¶9}Upon cross-examination, Ms. Yates admitted she was not at the scene of
the shooting. Whereupon, her testimony was concluded.
{¶10}The applicant then called Brandon Cox to the witness stand. Brandon
Cox stated he was a friend of the applicant. On the day of the incident, Mr. Cox was
supposed to take Shaquille to his bank to cash Shaquille’s check and then take
Shaquille to the Fifth/Third Bank near Shaquille’s work to open a bank account.
However, Mr. Cox was not able to do this since he had to pick up his son from school.
Whereupon, Mr. Cox’s testimony was concluded.
{¶11}Shaquille Yates was then called to testify. Mr. Yates related he is
currently employed with Buckeye Steel where he works ten hour days six days a week.
Mr. Yates was shown paycheck stubs from Speedway and his enrollment papers at Life
Skills, Applicant’s Exhibit 1. Mr. Yates testified that he was saving his earnings for a
car, since his family did not own a vehicle.
{¶12}On the day of the incident Brandon Cox was going to take him to a bank
to cash his check then to another bank to open an account. When he learned that
Brandon could not give him a ride he went to a store on the corner of Frebis and
Fairwood to cash his check. He then returned home, but still wanted to go to the bank
to open an account. He saw people he knew and inquired whether they could give him
a ride. An individual known as “Slick” offered him a ride in return for gas money.
Whereupon, they proceeded in Slick’s car. Slick informed Shaquille that he needed to
stop at a store. They proceeded to a store on the corner of Livingston and Miller.
Case No. V2010-50451 - 4 - ORDER
Shaquille went into the store, while Slick talked to people outside of the store. While in
the store he was approached by a former fellow student “E.J.” and E.J.’s friend
“Ray-Ray”. E. J. asked him for change for a twenty. Shaquille stated he carefully took
his money out of his pocket since he knew the danger of flashing money. He gave E.J.
4 fives for the twenty and E.J. and Ray-Ray left the store. As Shaquille was returning
to Slick’s car to leave, he heard a gun cock and Ray-Ray stated don’t try to run and give
me what’s in your pocket. A physical altercation ensued whereupon he was shot by
Ray-Ray. At that time he threw the wad of money in his pocket at Ray-Ray’s chest and
jumped in the car to go to the hospital. Slick then dropped him off at the out-patient
part of Children’s Hospital and quickly departed the scene.
{¶13}After about ten minutes he was transported from the out-patient clinic to
the emergency room. He stated he was then administered a shot of pain medication
and then was questioned by hospital personnel. He related he spoke to police
approximately 15 minutes after he left the trauma room.
{¶14}Mr. Yates stated on the day of his shooting he was in the possession of
two “blunts” or “joints.” He admitted that approximately three days before the incident
he purchased $10 worth of marijuana from “Smoke”. He had that with him on the day
of the incident and that is why he went to the store to buy two cigarillos to facilitate
smoking the marijuana.
{¶15}Mr. Yates stated he did not recall seeing Dodie Allen. She could have
been present but she would have been wearing a surgical mask so he would not have
been able to recognize her. He did not recall speaking to a woman while he was in the
trauma unit.
{¶16}Mr. Yates explained that on the day of the incident he had $550.00 but he
would have never told anyone he had $1,000 or $2,000 in his possession. Whereupon,
the applicant’s testimony was concluded.
Case No. V2010-50451 - 5 - ORDER
{¶17}In closing the Attorney General argued that a discrepancy between
statements the applicant gave to police as opposed to statements he made to a social
worker is understandable. The applicant would be more guarded in his statements to
police. The Attorney General stated that Dodie Allen’s testimony was credible and the
applicant has not presented sufficient evidence to rebut the incriminating statements
made at the hospital. Furthermore, the Attorney General contends the applicant
purchased two bags of marijuana at the store and was subsequently shot as the result
of this transaction. Therefore, the Attorney General’s Final Decision should be affirmed
since the applicant engaged in substantial contributory misconduct.
{¶18}The applicant stated that a review of the medical report reveals “CPD and
detective to bedside interviewing pt”. Accordingly, Ms. Allen was taking notes while
listening to the exchange between the applicant and the Columbus Police. The major
issue is whether the applicant said “two blunts” or “two bags.” The applicant contends
Ms. Allen simply could have misheard or was not familiar with the term blunts and wrote
down bags. Marijuana was not the issue between the applicant and police, since he
readily admitted to police he was in possession of two blunts.
{¶19}The applicant then focused on the statements provided by Detective
Longworth of the Columbus Police Department. In a Field Investigation Report
concerning the incident, Detective Longworth stated: “The claimant was not doing
anything that would have contributed to his being the victim of a crime on July 23,
2009.” Consequently, the applicant contends that the Attorney General has presented
insufficient evidence to establish that the applicant was engaged in contributory
misconduct.
{¶20}The Attorney General stated that in order for the panel to reach the
conclusion that the applicant engaged in substantial contributory misconduct it must
believe that this was a drug deal gone bad. The Attorney General believes Dodie
Case No. V2010-50451 - 6 - ORDER
Allen’s notes should be given credence due to the detail she provides. Whereupon, the
hearing was concluded.
{¶21}R.C. 2743.51(M) states:
“(M) ‘Contributory misconduct’ means any conduct of the claimant or of the
victim through whom the claimant claims an award of reparations that is
unlawful or intentionally tortious and that, without regard to the conduct’s
proximity in time or space to the criminally injurious conduct, has a causal
relationship to the criminally injurious conduct that is the basis of the claim.”
{¶22}R.C. 2743.60(F) in pertinent part states:
“In determining whether to make an award of reparations pursuant to this
section, the attorney general or panel of commissioners shall consider whether
there was contributory misconduct by the victim or the claimant. The attorney
general, a panel of commissioners, or a judge of the court of claims shall
reduce an award of reparations or deny a claim for an award of reparations to
the extent it is determined to be reasonable because of the contributory
misconduct of the claimant or the victim.”
{¶23}The Attorney General has the burden with respect to contributory
misconduct [exclusionary criteria R.C. 2743.60]. In re Williams, V77-0739jud (3-26-79);
and In re Brown (12-13-79).
{¶24}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.”
{¶25}Black’s Law Dictionary Sixth Edition (1990) defines burden of proof as:
“the necessity or duty of affirmatively proving a fact or facts in dispute on an issue
raised between the parties in a cause. The obligation of a party to establish by
Case No. V2010-50451 - 7 - ORDER
evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or
the court.”
{¶26}The credibility of witnesses and the weight attributable to their testimony
are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230,
39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to
believe or disbelieve, all or any part of each witness’ testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.
{¶27}The admission of felony drug use to hospital personnel creates a
rebuttable presumption which the applicant must overcome by the presentation of
contrary evidence. Failure to do so will result in the claim being denied pursuant to
R.C. 2743.60(F)(1)(e). In re Hartsough, V2008-30880tc (12-11-09).
{¶28}Illegal drug transactions create situations where it is reasonably
foreseeable that personal injury or death could result. In re Foreman, V2007-90749tc
(12-30-96); In re McCreary, V2006-20917tc (6-15-07), affirmed jud (11-5-07).
{¶29}From review of the case file and with full and careful consideration given
to the testimony presented and the arguments made at the hearing, we find the Attorney
General has failed to prove by a preponderance of the evidence that the applicant
engaged in contributory misconduct at the time he was injured. In order for us to find
contributory misconduct we must be convinced that the applicant engaged in a drug
deal which was causally connected to his shooting.
{¶30}On one hand we had the testimony of Dodie Allen, a social worker at
Nationwide Children’s Hospital who recollected that the applicant admitted he
purchased “2 bags” of marijuana from an individual which subsequently resulted in his
shooting. However, Ms. Allen admitted the trauma room was crowded with
approximately twenty people, the police were questioning the applicant simultaneously
with her interview, the applicant had been shot, was in severe pain, and under the
influence of pain medication. On the other hand, Columbus Police Detective
Longworth noted in his report that the applicant had not done anything to “contribute to
Case No. V2010-50451 - 8 - ORDER
his being the victim of a crime on July 23, 2009.” Certainly, if the applicant was
engaged in the purchase of two bags of marijuana, drug trafficking, that would have
been a contributory event. Finally, we found the testimony of the applicant to be
credible and he admitted he was in possession of two blunts, a cigar stuffed with
marijuana, at the time of the shooting. It appears based on the chaotic setting of the
trauma room Ms. Allen could have interpreted the word “blunt” to be “bag.” Finally, with
respect to medical questions we would defer to the opinion of a medical professional
over the impression of a police officer. By the same token with respect to contributory
criminal activity we believe a police officer’s assessment would prevail over the
recollection of a social worker.
{¶31}Accordingly, we find the Attorney General has failed to meet his burden to
prove, by a preponderance of the evidence, that the applicant engaged in contributory
misconduct at the time he was shot. We find the possession of a small amount of
marijuana, a minor misdemeanor, was not causally related to being shot in a robbery.
Therefore, the April 20, 2010 decision of the Attorney General is reversed.
IT IS ORDERED THAT
{¶32}1) Applicant’s Exhibit 1 is admitted in to evidence;
{¶33}2) State’s Exhibit A is admitted into evidence;
{¶34}3) The April 20, 2010 decision of the Attorney General is REVERSED
and judgment is rendered in favor of the applicant;
{¶35}4) This claim is remanded to the Attorney General for total economic
calculations and decision;
{¶36}5) 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;
{¶37}6) Costs are assumed by the court of claims victims of crime fund.
Case No. V2010-50451 - 9 - ORDER
_______________________________________
LLOYD PIERRE-LOUIS
Presiding Commissioner
_______________________________________
GREGORY P. BARWELL
Commissioner
_______________________________________
SUSAN G. SHERIDAN
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2011\January 2011\V2010-50451 Yates.wpd\DRB-tad
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 1-27-11
Jr. Vol. 2277, Pgs. 180-188
Sent to S.C. Reporter 10-13-11