In re Fletcher
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[Cite as In re Fletcher, 2007-Ohio-2986.]
IN THE COURT OF CLAIMS OF OHIO
VICTIMS OF CRIME DIVISION
www.cco.state.oh.us
IN RE: JOSEPH A. FLETCHER
:
Case No. V2006-20836
JOSEPH A. FLETCHER
:
Applicant
:
Commissioners:
Karl C. Kerschner, Presiding
Tim McCormack
Randi Ostry LeHoty
:
ORDER OF A THREECOMMISSIONER PANEL
:
: : : :
{¶1}
:
Joseph Fletcher (“applicant” or “Mr. Fletcher”) filed a reparations
application seeking reimbursement of expenses incurred with respect to a June 25,
2005 assault and robbery incident at a Days Inn hotel. On June 2, 2006, the Attorney
General denied the claim pursuant to R.C. 2743.52(A) contending that the applicant
failed to prove he qualified as a victim of criminally injurious conduct. The Assistant
Attorney General asserted that the applicant’s injuries resulted from a mutual fight. On
June 30, 2006, the applicant filed a request for reconsideration.
The applicant
contended that the police confused the facts of his case with another case that occurred
the evening of June 25, 2005 at the hotel. On August 18, 2006, the Attorney General
denied the claim pursuant to R.C. 2743.60(F) and R.C. 2743.60(C).
The Attorney
General stated that the applicant engaged in substantial contributory misconduct and
that he failed to fully cooperate with law enforcement during their investigation of the
Case No. V2006-20836
case.
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ORDER
On August 31, 2006, the applicant filed a notice of appeal to the Attorney
General’s August 18, 2006 Final Decision. On March 21, 2007 at 11:35 A.M., this
matter was heard by this panel of commissioners.
{¶2}
The applicant, applicant’s attorney, and an Assistant Attorney General
attended the hearing and presented testimony, an exhibit, and oral argument for the
panel’s consideration. Mr. Fletcher testified that he and his then girlfriend (currently, his
wife), Monica Grewatsch (“Mrs. Grewatsch”) traveled to the Days Inn in Brook Park on
June 25, 2005 for an evening alone, as they had done numerous times in the past,
without incident. The applicant explained that during that evening he was asked by Mrs.
Grewatsch to retrieve an item that she needed from their vehicle. The applicant stated
that as he proceeded to the automobile, he was assaulted by an unknown male while in
the hallway of the hotel. Mr. Fletcher testified that during the incident he yelled for help
several times to no avail. The applicant indicated that he was thrown down the stairs
and sustained a broken left arm, broken right hand, and two torn rotator cuffs. Mr.
Fletcher explained that after he recovered, he proceeded to his hotel room to tell his
girlfriend what had occurred. The applicant related that Mrs. Grewatsch told him to call
the police from the front desk in order to avoid a telephone charge. Mr. Fletcher further
testified that as he proceeded to the front desk he encountered a police officer and
made an oral report. The applicant indicated that he reported to the officer that the
offender was a white male, that he needed medical attention, and that he wanted the
matter pursued.
The applicant stated that he was transported to the hospital via
ambulance shortly after making his report. Mr. Fletcher testified that he was unaware of
Case No. V2006-20836
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ORDER
any witnesses to the incident. The applicant further elaborated that the police never
contacted him after the incident.
{¶3}
Mrs. Grewatsch briefly testified concerning the events of June 25, 2005.
Mrs. Grewatsch stated that at the time of the incident she and the applicant had been
dating and that they had been to the Days Inn hotel in Brook Park several times in the
past without incident. Mrs. Grewatsch testified that she did not see the assault, but
essentially confirmed the applicant’s recollection of the events prior to and after the
assault.
{¶4}
Officer Thomas Sensel (“Officer Sensel”) of the Brook Park Police
Department testified via telephone that he was dispatched to the Days Inn hotel in
Brook Park concerning a disturbance on the date of the incident. Officer Sensel stated
that when he arrived at the hotel there was substantial chaotic activity in the hotel lobby.
Officer Sensel indicated that shortly after he arrived on the scene witness Monique
Evans approached him and reported that she was staying at the hotel with her church
group and that she had witnessed an altercation between the applicant and another
person regarding drugs. Ms. Evans stated that the applicant was the initial aggressor of
the fight.
Officer Sensel related that he then spoke to the applicant who was
uncooperative and appeared intoxicated. Officer Sensel stated that the applicant told
him that he was assaulted by a black male and that he did not want to pursue the
matter. Officer Sensel explained that he did a disposition, but did not file a written
report until requested by his chief on a much later date.
Case No. V2006-20836
{¶5}
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ORDER
With respect to the exclusionary criteria of R.C. 2743.60, the Attorney
General bears the burden of proof by a preponderance of the evidence. In re Williams,
V77-0739jud (3-26-79) and In re Brown, V78-3638jud (12-13-79). According to R.C.
2743.51(M) and relevant case law, there are three elements that must be established
before a prima facie case of contributory misconduct can be met: (1) specific, unlawful
or intentionally tortious conduct by the victim or applicant;1 (2) a causal relationship
between the specific conduct and the criminally injurious conduct; and (3) foreseeability
of the likelihood of the criminally injurious conduct occurring if the victim or applicant
engaged in such conduct.2
Furthermore, in order to completely deny an award under
R.C. 2743.60(F), the Attorney General must prove that the victim’s or applicant’s
contributory misconduct was substantial.3
Contributory misconduct determinations
depend upon the particular facts and circumstances of each case and thereby warrant a
case-by-case analysis. In re Williams, V2001-32691tc (10-11-02).
{¶6}
In this case, we first find that the applicant qualifies as a victim of
criminally injurious conduct because he was a victim of an assault. Second, we find that
the Attorney General has failed to prove that the applicant engaged in contributory
misconduct. The Attorney General failed to prove that Mr. Fletcher engaged in any
specific unlawful or intentionally tortious conduct that contributed to the assault. Other
1
See In McGary II, V91-83761jud (11-16-94).
2
See In re Ewing (1987), 33 Ohio Misc.2d 48.
3
See In re Spaulding (1991), 63 Ohio Misc.2d 39.
Case No. V2006-20836
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ORDER
than a police report prepared over one year after the incident, there is no evidence that
the applicant engaged in a mutual fight with someone. Moreover, the reporting officer
did not witness the incident and no corroboratory testimony was provided.
The
applicant testified that he and Mrs. Grewatsch were at the hotel socially when he was
assaulted. We find the applicant’s and Mrs. Grewatsch’s testimony concerning the
events of June 25, 2005 to be credible. Moreover, Mr. Fletcher’s hospital records verify
that he sustained injury to his shoulders, arms, and hand as a result of the incident.
Further, we note that a written police report concerning the matter was not actually
drafted until July 2006 (over one year later) and that it was at the request of the Attorney
General’s Office.4
{¶7}
Revised Code 2743.60(C) states:
(C) The attorney general, a panel of commissioners, or a judge of the court of
claims, upon a finding that the claimant or victim has not fully cooperated with
appropriate law enforcement agencies, may deny a claim or reconsider and
reduce an award of reparations.
{¶8}
Third, we find that the Attorney General failed to prove that the applicant
failed to fully cooperate with law enforcement during their investigation. The applicant
testified that he reported the incident to Officer Sensel on the date of the incident and
Officer Sensel corroborated that testimony.
The police told the applicant that they
would further contact him concerning the matter after the evening of June 25, 2005, but
the applicant never heard from the police again.
4
Subsequently, the police department
See the Attorney General’s July 31, 2006 Supplemental Field Investigative Report.
Case No. V2006-20836
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ORDER
closed the matter until the Attorney General’s Office contacted the Brook Park Police
Department’s chief regarding a police report.
{¶9}
Based upon the above, we therefore find that the August 18, 2006
decision of the Attorney General shall be reversed and the claim shall be remanded to
the Attorney General for total economic loss calculations and decision consistent with
this decision.
{¶10} IT IS THEREFORE ORDERED THAT
{¶11} 1)
The August 18, 2006 decision of the Attorney General is REVERSED
and judgment is rendered in favor of the applicant;
{¶12} 2)
This claim is remanded to the Attorney General for total economic
loss calculations and decision consistent with the panel’s decision;
{¶13} 3)
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;
{¶14} 4)
Costs are assumed by the court of claims victims of crime fund.
_______________________________________
KARL C. KERSCHNER
Presiding Commissioner
_______________________________________
TIM MC CORMACK
[Cite as In re Fletcher, 2007-Ohio-2986.]
Commissioner
_______________________________________
RANDI OSTRY LE HOTY
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel May 2007\V2006-2083.wpd\11-dld-tad-032907
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Cuyahoga County Prosecuting Attorney and to:
Filed 5-18-2007
Jr. Vol. 2264, Pgs. 177-183
To S.C. Reporter 6-14-2007
Case No. V2006-20836
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ORDER
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