Opinion
No. V90-53516.
Decided January 20, 1993.
George N. Kafantaris, for the applicant.
Lee Fisher, Attorney General, for the state.
This matter came on to be considered upon the Attorney General's appeal from the August 24, 1992 order issued by the panel of commissioners which reversed the denial order of the single commissioner and granted the applicant, Willie Dawson, an award of reparations in the amount of $2,296 for unreimbursed allowable expense.
R.C. 2743.52 places the burden of proof on an applicant to satisfy the Court of Claims Commissioners that the requirements for an award of reparations 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 panel found, upon review of the file and evidence presented, that the applicant did report the criminally injurious conduct within seventy-two hours after its occurrence and that there was no evidence of applicant's failure to cooperate with law enforcement authorities.
The panel of commissioners further found that although the toxicology report from St. Joseph Riverside Hospital revealed cocaine in the applicant's system, that, in and of itself, was not sufficient evidence to warrant a determination that the applicant engaged in contributory misconduct or conduct that would constitute a felony if proved by proof beyond a reasonable doubt. This court would disagree. To obtain or possess cocaine is drug abuse which would constitute a felony under the laws of this state.
R.C. 2925.11, drug abuse, provides in pertinent part that:
"(A) No person shall knowingly obtain, possess, or use a controlled substance.
"* * *
"(C) Whoever violates this section is guilty of drug abuse, and shall be sentenced as follows:
"(1) If the drug involved is a compound, mixture, preparation, or substance included in schedule I or II, with the exception of marijuana, drug abuse is a felony of the fourth degree, and, if the offender previously has been convicted of a drug abuse offense, drug abuse is a felony of the third degree."
R.C. 2743.60(E) provides that:
"Neither a single commissioner nor a panel of commissioners shall make an award to a claimant who is a victim, or who claims an award of reparations through a victim, who, within ten years prior to the criminally injurious conduct that gave rise to the claim, was convicted of a felony or who is proved by a preponderance of the evidence presented to the commissioner or the panel to have engaged, within ten years prior to the criminally injurious conduct that gave rise to the claim, in conduct that, if proven by proof beyond a reasonable doubt, would constitute a felony under the laws of this state, another state, or the United States." (Emphasis added.)
The standard for reviewing claims appealed to the court is established by R.C. 2743.61, which provides, in pertinent part, the following:
"If upon hearing and consideration of the record and evidence, the court decides that the decision of the commissioners appealed from is reasonable and lawful, it shall affirm the same, but if the court decides that the decision of the commissioners is unreasonable or unlawful, the court shall reverse and vacate the decision or modify it and enter judgment thereon."
Upon review of the file and with full consideration given to the argument of counsel, this court finds that 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.
Based upon the evidence and R.C. 2743.61, it is the court's opinion that the decision of the panel of commissioners was unreasonable and unlawful. Therefore, this court grants the Attorney General's objection, reverses the panel of three commissioners' decision and denies the applicant's claim.
Judgment accordingly.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.