Opinion
No. V84-31573.
Decided March 18, 1988.
Barbara Porzin Kolozvary, for applicant Deborah J. Miskow.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
On January 7, 1985, the single commissioner issued an opinion wherein he decided the applicant's claim was meritorious and thereby granted an award of reparations in the amount of $297, consisting of unreimbursed allowable expense. The Attorney General had recommended that the applicant's claim be denied pursuant to the provisions of R.C. 2743.60(E). R.C. 2743.60(E) states:
"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 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 Attorney General's recommendation for denial was based upon the applicant's involvement in a criminal incident which occurred on March 4, 1983; the applicant was arrested and charged with aggravated burglary and complicity to commit burglary, in violation of R.C. 2911.11 and 2923.03(A)(2), respectively. Both of these offenses are first degree felonies in the state of Ohio. The applicant's preliminary hearing regarding said offenses was scheduled for March 25, 1983, but prior to the hearing the charges were modified by the prosecutor. The aggravated burglary charge was amended to petty theft in violation of the applicable city ordinance (Seven Hills City Ordinance 545.05) and the complicity charge was dismissed. The applicant entered a plea of "no contest" to the misdemeanor offense of petty theft and the court thereafter entered a finding of guilty. The Attorney General contends that the applicant's conduct, pertaining to the March 4, 1983 incident, was felonious and thus the claim should be denied pursuant to R.C. 2743.60(E).
On January 10, 1985, the Attorney General filed an objection to a panel of commissioners from the aforementioned single commissioner's decision. A panel of commissioners issued an order on September 9, 1985, wherein they affirmed the single commissioner's decision. On September 27, 1985, the Attorney General filed an appeal to this court from the panel's determination. At the time the single commissioner and the panel rendered said determinations, R.C. 2743.60(E) had been ruled unconstitutional; the issue was pending before the court for a definitive decree. The Attorney General's appeal is based on the fact that the decisions were rendered prior to a final determination regarding R.C. 2743.60(E).
In In re Cowan (Nov. 13, 1984), Ct. of Claims No. V83-63315sc, unreported, the single commissioner opined that R.C. 2743.60(E), referred to as the "felony exclusion rule," was an unconstitutional infringement of the Fourteenth Amendment to the United States Constitution. Specifically, the single commissioner held that excluding convicted felons from those eligible to receive reparations awards was a denial of equal protection and was a constitutionally impermissible restriction upon the citizens of Ohio. The single commissioner's findings and decision were subsequently affirmed by the panel of commissioners. See In re Cowan (Aug. 23, 1985), Ct. of Claims No. V83-63315tc, unreported. On appeal to the court, however, Cowan was reversed and thus R.C. 2743.60(E) was held constitutionally sound. In re Cowan (1986), 27 Ohio Misc.2d 12, 27 OBR 126, 499 N.E.2d 937.
In the instant case, in view of the ultimate disposition of Cowan, it would initially appear that the decisions below should be reversed. However, this claim is not in the usual context of those claims which were pending during Cowan's progression through the appellate process.
In the case at bar, the Attorney General contends that the applicant's 1983 arrest, and circumstances surrounding the incident, exclude her from participating in the Victims of Crime Program.
In this regard, the court must review the applicant's conduct rather than a conviction. Thus, this necessitates that the court determine whether evidence is present which would support a finding (by a preponderance) that the applicant engaged in felonious conduct which could have led to a conviction, due to the March 1983 incident.
Upon review of R.C. 2911.11 (aggravated burglary) and the record before the court, the court finds that there is a lack of evidence to indicate that the applicant engaged in conduct that would constitute said felonious offense. The greater weight of the evidence does not support a finding of criminal wrongdoing as required in R.C. 2743.60(E).
The court also finds that the companion felony charge, complicity (R.C. 2923.03[A][2]), does not interfere with the applicant's claim for an award. The information before the court indicates that a crime was, in all probability, committed by Frank Conti on March 4, 1983. There is nothing in the file to indicate the disposition of any charges against Conti which arose as a result of his apparent felonious conduct on said date. A conviction under R.C. 2923.03 does not require a conviction of the principal offender; the mere commission of an offense will support a complicity conviction. If the court were to find that a felony was committed by Frank Conti on March 4, 1983, this finding would not automatically lay a foundation for denying applicant's claim pursuant to R.C. 2743.60(E).
R.C. 2923.03 (complicity) reads, in pertinent part:
"(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
"* * *
"(2) Aid or abet another in committing the offense."
In order to determine this issue, the meaning of "aid or abet" as used in R.C. 2923.03(A)(2) must be ascertained. In State v. Sims (1983), 10 Ohio App.3d 56, 10 OBR 65, 460 N.E.2d 672, the Court of Appeals for Cuyahoga County exhaustively reviewed the Ohio case law relative to aiding or abetting a crime. The court found that a conviction for a violation of R.C. 2923.03(A)(2) could not be sustained absent a showing that the defendant assisted, incited or encouraged the principal. Mere association will not support the conviction without proof of prior knowledge or conspiracy in commission of the crime. Id. at 58-59, 10 OBR at 67-69, 460 N.E.2d at 674-676.
This court cannot find by a preponderance of the evidence that the applicant would have been convicted of complicity due to the events occurring on March 4, 1983. The applicant's involvement with Conti (she was romantically linked with him) is more evident than her assistance in Conti's independent criminal acts; such a link with the crime would not support a conviction without evidence of the applicant's prior knowledge or conspiracy with Conti. There are no such allegations or evidence in the case sub judice. Under authority of Sims, supra, the court finds that there is a lack of evidence to demonstrate that the applicant was engaged in conduct that would constitute a felony within ten years prior to her claim.
This court's discussion of this issue is not an acceptance of the current version of R.C. 2743.60(E) as it relates to behavior rather than conviction; the legislature has placed this court in a difficult position in making such determinations due to the two burdens of proof involved.
However, in the instant case, based upon a review of the record, the court finds that the Attorney General's appeal is not well taken and the applicant is entitled to an award of reparations. Thus, the decisions of the single commissioner and the panel of commissioners are correct and are hereby affirmed.
Decisions affirmed.
LOUIS J. SCHWARTZ, J., of the Clermont County Court of Common Pleas, sitting by assignment.