In re McCray

[Cite as In re McCray, 2010-Ohio-2645.]
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
http://www.cco.state.oh.us
IN RE: ANGELA J. MC CRAY
ANGELA J. MC CRAY
Applicant
Case No. V2009-40226
Commissioners:
Randi M. Ostry, Presiding
Elizabeth Luper Schuster
OPINION OF A TWO-COMMISSIONER PANEL
{¶ 1} The appeal before this panel involves whether the applicant, Angela
McCray, timely reported the crime to law enforcement within seventy-two hours of its
occurrence as is required by R.C. 2743.60(A) or established good cause for failure to
report the incident within the seventy-two hour period. While we cannot find that the
applicant reported the incident to law enforcement within seventy-two hours, we do find
that the applicant has shown good cause and accordingly the Attorney General’s
decision should be reversed.
I. Procedural History
{¶ 2} On August 1, 2008, the applicant filed a compensation application as the
result of a series of domestic violence incidents. On November 26, 2008, the Attorney
General issued a finding of fact and decision denying the applicant’s claim based upon
R.C. 2743.60(A), failure to report the criminal incident within seventy-two hours or show
good cause for a failure to report. On December 17, 2008, the applicant filed a request
for reconsideration. On February 17, 2009, the Attorney General rendered a Final
Decision finding no reason to modify its initial decision. Furthermore, the Attorney
General’s investigation revealed the criminal conduct was not reported to law
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enforcement until December 17, 2008, almost six months after the last incident of May
27, 2008. On March 17, 2009, the applicant filed a notice of appeal from the February
17, 2009 Final Decision of the Attorney General. The hearing was held before this
panel of commissioners on December 17, 2009 at 10:30 A.M.
II. Applicant’s Position
{¶ 3} The applicant, Angela McCray, her attorney, Philip Sheridan and Assistant
Attorney General Tyler Brown attended the hearing and presented testimony and oral
arguments for the panel’s consideration. The applicant contends that contrary to the
Attorney General’s allegations she did report the incidents of domestic violence to
police. In response to the domestic violence the applicant successfully obtained a civil
protection order (CPO) against her husband, the offender. When the CPO was
violated the offender was arrested and prosecuted. Furthermore, the police were
aware of the situation in that approximately four to five days after the domestic violence
incident involving the applicant, police were called to her residence to break up an
altercation between the offender and the couple’s adult son. That incident was
triggered by the offender’s violation of the CPO and resulted in the arrest of the adult
son for domestic violence. In the subsequent divorce action the offender was ordered
to wear an ankle bracelet in order to ensure that he did not approach the applicant.
{¶ 4} The applicant asserts that the criminally injurious conduct was reported
orally to the police, however, the police refused to memorialize that contact in writing.
Finally, due to the offender’s association with police over the years, the police acted as
if the applicant was the problem, not the offender.
III. Attorney General’s Position
{¶ 5} The Attorney General asserted that the date of the alleged incident was
May 27, 2008; however, no police report referencing that date could be located. After
the applicant’s compensation claim was denied, the applicant then reported the May 27,
2008 incident to police. However, over six months elapsed from the date of the
incident to the date of the report. The only reason the applicant asserted for her failure
Case No. V2009-40226 -14- ORDER
to report the incident was her lack of knowledge that the incident must be reported in
order to receive compensation. This excuse does not constitute good cause under the
statute, and accordingly, the Attorney General’s Final Decision should be affirmed.
IV. Witness Testimony and Argument
{¶ 6} The applicant first called Nicole Bell. Ms. Bell testified that she worked as
a court advocate for the Lancaster City’s Prosecutor’s Office through The Lighthouse,
Lancaster’s Battered Women’s Shelter and Child Advocacy Center. Ms. Bell became
aware of the applicant because the applicant was a complaining witness in a domestic
violence case. She first met with the applicant in December 2008. Ms. Bell testified
that she knew the applicant had been a victim of domestic violence since 1991. Ms. Bell
also stated that from a review of the records, numerous contacts with the applicant
occurred with her office with some resulting in CPO’s being issued.
{¶ 7} The witness was shown Applicant’s Exhibit 1, case notes the witness had
produced evidencing her involvement with the applicant. The case notes reflect that a
CPO was issued against the offender, the CPO was violated, and the offender was
charged and convicted of violating the CPO. Ms. Bell related that she was present at
the arraignment and sentencing of the offender. Ms. Bell also recounted that she
gained additional insight into this situation by attending the arraignment of the
applicant’s son. Information presented at the arraignment was also utilized when the
applicant subsequently sought a CPO against the offender. The offender was in
violation of a stay away order granted at the initiation of the divorce proceedings at the
time of the altercation with his adult son.
{¶ 8} Ms. Bell also had conversations with the applicant wherein she told the
applicant that criminal incidents need to be reported to police in order to be eligible for
compensation. The applicant expressed her frustration with the Lancaster Police
Department in not taking her reports. Consequently, Ms. Bell called a Lancaster Police
officer to her office so a report could be taken. Ms. Bell related unfortunately there are
Case No. V2009-40226 -14- ORDER
some officers who will not respond to a domestic violence complaint call, therefore she
found the applicant’s complaints believable.
{¶ 9} Upon cross-examination, Ms. Bell recalled that in the incident involving the
offender and the couples’ adult son, the son plead guilty to disorderly conduct and the
offender was not charged. Ms. Bell stated she was not personally aware if a stay away
order against the offender was in effect at the time of this altercation. While Ms. Bell
asserted the police had refused to take reports from the applicant, she had no
knowledge of police actions prior to the issuance of the CPO. Whereupon, the
testimony of Ms. Bell was concluded.
{¶ 10} The applicant was also called to testify. Ms. McCray testified that she
was the victim of ongoing domestic violence caused by the offender’s abuse of alcohol
and prescription medications. She stated she filed for divorce in May 2008. The
applicant asserted on May 27, 2008, she was assaulted by her husband. She was at
work at the time of this incident so she could not report the incident of May 27th to
police. On May 29, 2008, neighbors called police to the applicant’s residence as the
result of a physical altercation between her son and the offender.
{¶ 11} Based upon her previous experience with police being non-responsive to
her complaints against her husband, the applicant went to The Lighthouse to report the
incident and obtain a CPO because they would take her claims seriously and accurately
report the incidents. The applicant’s current CPO covers herself, her son, and her
son’s girlfriend, and is effective until 2013. Throughout the pendency of the divorce,
the offender violated the CPO to the point where the divorce court judge required the
offender to wear an ankle bracelet to ensure he would stay away from the applicant’s
residence. The applicant admitted that she did not report the May 27, 2008 incident to
the Lancaster Police Department but felt reporting the incident to The Lighthouse and
obtaining a CPO should satisfy the reporting requirement.
{¶ 12} Upon cross-examination, the applicant revealed it was her husband who
initiated divorce proceedings, but she did not know the date of the filing. The Attorney
Case No. V2009-40226 -14- ORDER
General directed the applicant’s attention to the May 29, 2008 incident involving her son
and husband. The applicant stated she was not present at the time of the incident.
Her husband filed charges against her son and it was at her urging that her son turned
himself in. Upon her son’s release from jail they went to The Lighthouse to obtain a
CPO.
{¶ 13} The applicant testified that she called the Lancaster Police Department on
numerous occasions after the CPO was issued to report CPO violations but they would
not respond. Finally, the applicant had to contact Nicole Bell so a police report could
be made. Whereupon, the testimony of the applicant was concluded. The applicant
moved for the admission of Applicant’s Exhibit 1.
{¶ 14} The applicant concluded that the incident was timely reported to The
Lighthouse, an agent of the prosecutor’s office. Furthermore, if this argument is
insufficient, the applicant had good cause for failure to timely report since it was
undisputed that the Lancaster Police Department refused to take any reports from the
applicant. Only by the intervention of Nicole Bell was a written report successfully
made. The purpose of the reporting requirement is to identify the offender and protect
the victim. Both purposes were achieved in this case. The CPO identified the
offender and the offender was ultimately prosecuted for CPO violations.
{¶ 15} The Attorney General stated the incident was not reported within
seventy-two hours as is required by R.C. 2743.60(A). The Attorney General urged this
panel to rely on the holding of In re Fields, V2007-90072tc (6-15-07) affirmed jud
(11-13-07), to determine what is reasonable with respect to good cause. The Attorney
General argued that describing the incident to employees of The Lighthouse or filing the
CPO does not satisfy the reporting requirement, nor should the distrust of police be
sufficient to warrant a good cause delay in reporting the incident. Furthermore, filing
the CPO does not satisfy the reporting requirement since the court is not a law
enforcement agency and no criminal prosecution can result from a CPO hearing.
Whereupon, the hearing was concluded.
Case No. V2009-40226 -14- ORDER
V. Controlling Law and Precedent
{¶ 16} R.C. 2743.60(A) in pertinent part states:
“An award of reparations shall not be made to a claimant if the criminally
injurious conduct upon which the claimant bases a claim was not reported to a
law enforcement officer or agency within seventy-two hours after the
occurrence of the conduct, unless it is determined that good cause existed for
the failure to report the conduct within the seventy-two-hour period.”
{¶ 17} The purpose of the reporting requirement is to: (1) verify the occurrence of
the incident and (2) ensure the investigation and/or prosecution of the offender. In re
Ries, V93-69316tc (1-31-95).
{¶ 18} Good cause for failure to report is to be evaluated upon a standard of
reasonableness. In re Smith, V77-0741tc (7-10-78). The circumstances under which
the criminally injurious conduct occurred should be considered in determining whether
good cause exists for the delay in reporting criminally injurious conduct to law
enforcement. Each claim must be evaluated on a case-by-case basis. In re Carmany,
V98-60228jud (10-4-00).
{¶ 19} 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’s testimony. State v. Antill (1964),
176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548.
VI. Panel’s Determination
{¶ 20} The issue before us is whether the reporting requirement contained in
R.C. 2743.60(A) was satisfied. Initially, no evidence has been presented that the
criminally injurious conduct was reported to law enforcement within seventy-two hours
of its occurrence. Therefore, we must decide whether the applicant’s six-month delay
Case No. V2009-40226 -14- ORDER
in reporting the incident to police constitutes good cause under the statute. To
determine good cause we must evaluate the applicant’s actions based upon what a
reasonable person would do under the same circumstances.
{¶ 21} Black’s Law Dictionary defines reasonable as “thinking, speaking, or
acting according to the dictates of reason.” In the case at bar, the applicant testified to
the long-standing domestic violence incidents she endured over the course of her
marriage. The applicant testified that her husband had friends and relatives who were
employed by the Lancaster Police Department and she believed he used those
relationships to cast doubt upon her veracity and credibility. She testified that the
police failed to respond to her calls for help and would only come to the scene if the
calls were placed by neighbors. Therefore, she did not report the May 27, 2008
incident because she firmly believed the police would not assist her.
{¶ 22} The applicant’s testimony was corroborated by Nicole Bell who testified
that while working with the prosecutor’s office she had to request a Lancaster Police
Officer to come to her office to take the applicant’s report. Furthermore, the officer in
the report stated: “This report is for the state’s Attorney General’s Office Victims of
Crime Compensation.” This indicates that the officer had no intention of doing any
follow-up investigation but was merely performing a perfunctory obligation. Ms. Bell
further testified that “unfortunately there are some officers that choose not to come to
residences that have multiple calls.” It should be noted that the Attorney General
presented no evidence which questioned the veracity of the applicant’s testimony.
{¶ 23} In response to the offender’s violent conduct, the applicant filed for a civil
protection order on June 3, 2008. An ex parte CPO was granted. After a full hearing,
the Fairfield County Court of Common Pleas issued an Order of Protection that shall
remain in effect until June 3, 2013. Accordingly, a majority of this panel finds that the
applicant acted in a reasonable manner to protect herself from further harm, when
under the circumstances she felt the police could not afford her adequate protection. It
is noted that the offender was criminally prosecuted for violating the CPO.
Case No. V2009-40226 -14- ORDER
{¶ 24} We agree with the dissent that the first prong of R.C. 2743.60(A) has not
been met. We also agree that our role is to interpret the law and not legislate from the
bench. However, we have not done so in this case. The second prong of R.C.
2743.60(A) provides this panel with discretion to determine whether good cause exists.
It was with the diligent use of this discretion that we reached our decision in this case.
{¶ 25} We find under the circumstances of this case, that the applicant has
shown good cause for her delay in reporting the incident to police. We believe that
applicant has satisfied requirements contained in In re Ries since the applicant’s pattern
of conduct consistently evidences the fact that she was a victim of domestic violence;
she identified her offender; chose a reasonable course of action to ensure her
victimization did not continue; and reported the matter to law enforcement. Whether
law enforcement chose to pursue this matter was beyond the control of the applicant.
Therefore, we find the Attorney General’s decision of February 17, 2009 should be
reversed.
RANDI M. OSTRY
Presiding Commissioner
_______________________________________
ELIZABETH LUPER SCHUSTER
Commissioner
Gregory P. Barwell, Commissioner, Dissenting Opinion:
{¶ 26} I respectfully dissent. I believe the evidence clearly establishes that no
police report was filed within seventy-two hours of the criminally injurious conduct.
Furthermore, the applicant has not provided good cause for her delay in reporting the
incident.
{¶ 27} R.C. 2743.60(A) clearly states: “An award of reparations shall not be
made to a claimant if the criminally injurious conduct upon which the claimant bases a
Case No. V2009-40226 -14- ORDER
claim was not reported to a law enforcement officer or agency within seventy-two hours
after the occurrence of the conduct, unless it is determined that good cause existed for
failure to report the conduct within the seventy-two hour period.”
{¶ 28} I believe we should follow the mandate of the General Assembly. While a
panel of commissioners in the past has made exceptions to the reporting requirement
when the conduct was reported to one possessing a statutory obligation to report the
incident to police, see In re Ross, V2003-40933tc (4-21-04) hospital staff; In re
Michaelis, V90-36182tc (5-14-91) store manager; In re Miller (1993), 63 Ohio Misc. 2d
124, transit authority; In re Kramer (1995), 86 Ohio Misc. 2d 4, county children services
board; that is not the case here. The Lighthouse, a not-for-profit battered women’s
shelter, did not have such an obligation. While it may be argued that such an agency
should be obligated to assist victims in this manner, that is a matter to be considered by
the General Assembly, not this panel.
{¶ 29} The same argument can be made for the Court of Common Pleas in that
the applicant filed for a civil protection order. However, the General Assembly
specifically limited the reporting requirement to law enforcement agencies. Under R.C.
2901.01(A)(11), “law enforcement officer” is defined as:
{¶ 30} “(a) A sheriff, deputy sheriff, constable, police officer of a township or joint
township police district, marshal, deputy marshal, municipal police officer, member of a
police force employed by a metropolitan housing authority under division (D) of section
3735.31 of the Revised Code, or state highway patrol trooper;
(b) An officer, agent, or employee of the state or any of its agencies,
instrumentalities, or political subdivisions, upon whom, by statute, a duty to
conserve the peace or to enforce all or certain laws is imposed and the
authority to arrest violators is conferred, within the limits of that statutory duty
and authority;
(c) A mayor, in the mayor’s capacity as chief conservator of the peace within
the mayor’s municipal corporation;
Case No. V2009-40226 -14- ORDER
(d) A member of an auxiliary police force organized by county, township, or
municipal law enforcement authorities, within the scope of the member’s
appointment or commission;
(e) A person lawfully called pursuant to section 311.07 of the Revised Code to
aid a sheriff in keeping the peace, for the purposes and during the time when
the person is called;
(f) A person appointed by a mayor pursuant to section 737.01 of the Revised
Code as a special patrolling officer during riot or emergency, for the purposes
and during the time when the person is appointed;
(g) A member of the organized militia of this state or the armed forces of the
United States, lawfully called to duty to aid civil authorities in keeping the peace
or protect against domestic violence;
(h) A prosecuting attorney, assistant prosecuting attorney, secret service
officer, or municipal prosecutor;
(i) A veterans’ home police officer appointed under section 5907.02 of the
Revised Code;
(j) A member of a police force employed by a regional transit authority under
division (Y) of section 306.35 of the Revised Code;
(k) A special police officer employed by a port authority under section 4582.04
or 4582.28 of the Revised Code;
(l) The house of representatives sergeant at arms if the house of
representatives sergeant at arms has arrest authority pursuant to division (E)(1)
of section 101.311 of the Revised Code and an assistant house of
representatives sergeant at arms;
(m) A special police officer employed by a municipal corporation at a municipal
airport, or other municipal air navigation facility, that has scheduled operations,
as defined in section 119.3 of Title 14 of the Code of Federal Regulations, 14
Case No. V2009-40226 -14- ORDER
C.F.R. 119.3, as amended, and that is required to be under a security program
and is governed by aviation security rules of the transportation security
administration of the United States department of transportation as provided in
Parts 1542. and 1544. of Title 49 of the Code of Federal Regulations, as
amended.”
{¶ 31} This definition does not include a Court of Common Pleas. Certainly a
strong argument can be made that filing for a civil protection order should result in the
police being informed of the criminal activity underlying the issuance of such an order.
However, the forum for that debate should be in the General Assembly not before this
panel. It is our purpose to interpret the law, not create new law.
{¶ 32} Finally, I do not find that the applicant’s conduct was reasonable in waiting
six months to report the incident to police. By the applicant’s own admission she had a
contentious relationship with the police, however; she knew The Lighthouse was able to
communicate with police when she was not able. Why the applicant waited until her
claim with the Attorney General was denied, before she utilized this option can only be
known by the applicant. However, the applicant had the opportunity to use this option
on her first meeting at The Lighthouse within days of the incident. She chose not to.
{¶ 33} Accordingly, based upon the clear language of R.C. 2743.60(A), I would
affirm the decision of the Attorney General. Therefore I respectfully dissent.
_______________________________________
GREGORY P. BARWELL
Commissioner
Court of Claims of Ohio
Case No. V2009-40226 -14- ORDER
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: ANGELA J. MC CRAY
ANGELA J. MC CRAY
Applicant
Case No. V2009-40226
Commissioners:
Randi M. Ostry, Presiding
Elizabeth Luper Schuster
ORDER OF A TWO-COMMISSIONER PANEL
{¶ 34} IT IS THEREFORE ORDERED THAT
{¶ 35} 1) Applicant’s Exhibit 1 is admitted into evidence;
{¶ 36} 2) The February 17, 2009 decision of the Attorney General is
REVERSED and judgment is rendered in favor of the applicant;
{¶ 37} 3) This claim is remanded to the Attorney General for total economic
loss calculation and decision;
{¶ 38} 4) 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;
{¶ 39} 5) Costs are assumed by the court of claims victims of crime fund.
Case No. V2009-40226 -14- ORDER
_______________________________________
RANDI M. OSTRY
Presiding Commissioner
_______________________________________
ELIZABETH LUPER SCHUSTER
Commissioner
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Fairfield County Prosecuting Attorney and to:
Filed 4-30-2010
Jr. Vol. 2275, Pgs. 68-69
To S.C. Reporter 6-9-2010