In re Murphy

[Cite as In re Murphy, 2011-Ohio-4350.]

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: GLENDA L. MURPHY

CHRISTOPHER M. CORBIN

SILVER R. CORBIN

Applicants

Case No. V2010-50167

Commissioners:

Gregory P. Barwell, Presiding

Elizabeth Luper Schuster

OPINION OF A TWO-

COMMISSIONER PANEL

{1}On July 9, 2009, the applicants, Christopher and Silver Corbin, filed a

compensation application as the result of the death of their mother, Glenda Murphy.

On October 26, 2009, the Attorney General issued a finding of fact and decision

denying the applicants’ claim since the decedent tested positive for cocaine at the time

of her death. Accordingly, the applicants’ claim was denied pursuant to R.C.

2743.60(E)(1)(e). On November 9, 2009, the applicants submitted a request for

reconsideration. On February 9, 2010, the Attorney General rendered a Final Decision

finding no reason to modify the initial decision. On February 17, 2010, the applicants

filed a notice of appeal from the February 9, 2010 Final Decision of the Attorney

General. Hence, a hearing was held before this panel of commissioners on October

21, 2010 at 10:45 A.M.

{2}The applicants their attorneys, Michael Falleur and Kimberley Wells,

attended the hearing while the state of Ohio was represented by Assistant Attorney

General Georgia Verlaney.

{3}The applicants assert the only issue on appeal is whether the decedent

engaged in a violation of R.C. 2925.11 at the time of her death which would disqualify

Case No. V2010-50167 Page 2

the applicants’ claims for an award of reparations pursuant to R.C. 2743.60(E)(1)(e).

The applicants assert the Attorney General has failed to meet its burden of proof to

show that the decedent engaged in a violation of R.C. 2925.11 at the time of her death.

{4}The Attorney General asserts that information received from the coroner’s

office revealed that the decedent tested positive for methylecgonine (cocaine

metabolites) at the time of the autopsy. Accordingly, the claim should be denied

pursuant to R.C. 2743.60(E)(1)(e). A metabolite is a derivative of cocaine and the term

derivative is used in the definition for cocaine in the criminal code R.C. 3719.41

Schedule II (A)(4); R.C. 2925.01(X), and R.C. 3719.01(O)(1). The Attorney General

contends that the presence of cocaine metabolites in the decedent’s system equates to

possession of cocaine. Therefore, once this has been established the burden of proof

shifts to the applicants to prove either the testing procedure was erroneous or the

individual did not knowingly ingest the drug. Finally, although the Attorney General has

the burden of proof with regard to this issue, the Attorney General must meet that

burden by a preponderance of the evidence.

{5}The Attorney General called Calvin E. McGuire, Chief Toxicologist of the

Franklin County Coroner’s Office, to testify. Both parties stipulated that the witness

qualified as an expert. Mr. McGuire testified that testing performed on the decedent

Glenda Murphy indicated the presence of cocaine metabolites and levamisole, a cutting

agent for cocaine. Both benzoylecgonine and methylecgonine are derivatives of

cocaine. The body metabolizes these substances to rid itself of these derivatives. Mr.

McGuire testified to a reasonable degree of forensic science that the presence of

cocaine metabolites in the body can only be achieved by the ingestion or injection of

cocaine.

{6}Upon cross-examination, Mr. McGuire conceded that he did not sign off on

the toxicology report concerning the decedent. The chief toxicologist at the time Dr.

Wyman did. Mr. McGuire testified that the tests were performed on blood received

from Grant Hospital. Presumably the victim was alive when the blood was drawn.

Case No. V2010-50167 Page 2

{7}On redirect examination, Mr. McGuire testified that benzoylecgonine was

detected in the initial screening test, while methylecgonine was detected in the

confirmation test. These results were not inconsistent, but confirmed cocaine

metabolites were present in the blood sample. Finally, Mr. McGuire testified to the

chain of custody procedures.

{8}On recross examination, the witness indicated that no cocaine was found in

either the decedent’s blood or urine.

{9}Upon questioning by the commissioners, Mr. McGuire stated it takes

approximately seventy-two hours for cocaine metabolites to leave the system, whereas

cocaine cannot be detected after approximately 6 to 10 hours. The witness stated that

the decedent had ingested cocaine within the last seventy-two hours of her death.

Whereupon, Mr. McGuire’s testimony was concluded.

{10}The applicants called Dr. John Wyman to testify via telephone. Dr.

Wyman is currently Chief Toxicologist at Cuyahoga County Regional Forensic

Laboratory, at the time of Glenda Murphy’s death, he was Chief Toxicologist in the

Franklin County Corner’s Office. He noted he reviewed all the data and that he signed

off on the toxicology report for Glenda Murphy. Dr. Wyman was directed to a letter he

authored on September 1, 2009. In that letter Dr. Wyman wrote:

{11}“Cocaine (parent molecule) has a very short half-life (approximately 90

minutes) and will not be detectable in blood after about six hours from the last

time of exposure (i.e., four half-lives). The metabolites of cocaine may be

detectable in the urine for up to 72 hours from the last time of exposure.”

{12}He acknowledged he still holds this opinion and this opinion is within a

reasonable degree of forensic certainty. In this situation, only metabolites of cocaine

were found. Furthermore, since no cocaine was found in the blood that meant that

cocaine was not ingested at least six hours prior to the collection of the blood.

Case No. V2010-50167 Page 2

{13}Upon cross-examination, Mr. Wyman was directed to a letter provided to

the Attorney General’s office on July 6, 2010. Mr. Wyman acknowledged that he wrote

the following:

{14}“The metabolites of cocaine ‘come from’ cocaine so it is my opinion that

methylecgonine and benzoylecgonine are derivatives of cocaine.”

He stated that this sentence reflects his position today. He also indicated to the best of

his knowledge methylecgonine and benzoylecgonine can only be derived from cocaine.

The tests are a confirmation of the decedent’s exposure to cocaine.

{15}In closing the Attorney General contends that it has been proven by a

preponderance of the evidence that the decedent violated R.C. 2743.60(E)(1)(e) and

accordingly, no award should be granted in this case. Both witnesses testified that

derivatives of cocaine were detected in the decedent’s body at the time the toxicology

test was performed. The Attorney General maintains that the decedent was in violation

of R.C. 2925.11 at the time of her death. To determine the felony drug involved one

must reference R.C. 3719.41 Schedule II (A)(4) which states:

{16}“(A) Narcotics-opium and opium derivatives

“Unless specifically excepted under federal drug abuse control laws or unless

listed in another schedule, any of the following substances whether produced

directly or indirectly by extraction from substances of vegetable origin,

independently by means of chemical synthesis, or by a combination of

extraction and chemical synthesis:

“(4) Coca leaves and any salt, compound, derivative, or preparation of coca

leaves (including cocaine and ecgonine, their salts, isomers, and derivatives,

and salts of those isomers and derivatives), and any salt, compound, derivative,

or preparation thereof that is chemically equivalent to or identical with any of

these substances, except that the substances shall not include decocainized

Case No. V2010-50167 Page 2

coca leaves or extraction of coca leaves, which extractions do not contain

cocaine or ecgonine.”

{17}Furthermore, R.C. 3719.01(P)(1) states:

“(P) ‘Narcotic drugs’ means coca leaves, opium, isonipecaine, amidone,

isoamidone, ketobemidone, as defined in this division, and every substance not

chemically distinguished from them and every drug, other than cannabis, that

may be included in the meaning of “narcotic drug” under the federal drug abuse

control laws. As used in this division:

“(1) ‘Coca leaves’ includes cocaine and any compound, manufacture, salt,

derivative, mixture, or preparation of coca leaves, except derivatives of coca

leaves, that does not contain cocaine, ecgonine, or substances from which

cocaine or ecgonine may be synthesized or made.”

{18}Finally, R.C. 2925.01(X)(1), (2), and (3) states:

“(X) ‘Cocaine’ means any of the following:

“(1) A cocaine salt, isomer, or derivative, a salt of a cocaine isomer or

derivative, or the base form of cocaine;

“(2) Coca leaves or a salt, compound, derivative, or preparation of coca leaves,

including ecgonine, a salt, isomer, or derivative of ecgonine, or a salt of an

isomer or derivative of ecgonine;

“(3) A salt, compound, derivative, or preparation of a substance identified in

division (X)(1) or (2) of this section that is chemically equivalent to or identical

with any of those substances, except that the substances shall not include

decocainized coca leaves or extraction of coca leaves if the extractions do not

contain cocaine or ecgonine.”

{19}The Attorney General asserts that derivatives of cocaine are indicia of the

presence of a controlled substance in the decedent’s body. Furthermore, the Attorney

General’s burden of proof is a preponderance of evidence. This standard was

elucidated in the holding in In re Dawson (1993), 63 Ohio Misc. 2d 79, wherein a judge

Case No. V2010-50167 Page 2

of the court of claims held “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.”

{20}The Attorney General asserts possession, as required by R.C. 2925.11,

has been established based upon the toxicology report findings that cocaine

metabolites, namely methylecgonine and benzoylecgonine, were contained in the

decedent’s blood sample. The Attorney General urged this panel to follow the court’s

holdings in State v. Scott (May 5, 1994), Cuyahoga App. No. 63234; State v. McGowan

(August 2, 1993), Cuyahoga App. No. 63491; and State v. Napper (November 27,

1991), Marion App. No. 9-91-11.

{21}The Attorney General also asserts that reliance should not be placed on In

re Green, V2003-40836tc (1-29-04) affirmed jud (5-13-04), since that holding was

rendered when the disqualification pursuant to R.C. 2925.11 was listed under the

contributory misconduct section of the statute. Consequently, under former R.C.

2743.60(E) there had to be possession of a felony drug pursuant to R.C. 2925.11 plus a

causal connection between the possession of the felony drug and the resulting injury.

The Attorney General contends under current R.C. 2743.60(E)(1)(e), no causal

connection between the felony drug and the conduct need be shown. The Attorney

General relies on the holding in In re Matacia, V2008-30804tc (2-26-09) affirmed jud

(6-2-09), to support the proposition that a positive toxicology report justifies a denial

pursuant to R.C. 2743.60(E)(1)(e). While the Matacia case involved a positive

toxicology test for cocaine, the Attorney General emphasizes the definition of cocaine

found in the criminal code and asserts the word “derivative” relates to metabolites found

in the decedent’s system. Consequently, the Attorney General argues the state has

met its burden by the production of the positive toxicology report and then the burden

shifts to the applicant to prove either the testing results are faulty or decedent was

involuntarily forced to ingest the cocaine.

Case No. V2010-50167 Page 2

{22}The Attorney General contends the applicants have failed to rebut this

presumption. The Attorney General asserts the standards for rebutting this

presumption are set forth in In re Brown, V92-91156sc (8-26-93) and In re Lewis,

V2005-38294tc, 2006-Ohio-4023, affirmed jud 2006-Ohio-6315. In the case at bar,

there was no evidence presented by the applicants that the toxicology reports were

faulty or that the decedent was forced to ingest cocaine.

{23}Upon questioning by a panel of commissioners the Attorney General stated

that to have cocaine or cocaine metabolites in one’s system satisfies the requirement

contained in R.C. 2743.60(E)(1)(e) of “engaging in conduct that was a felony violation of

section 2925.11 of the Revised Code.” Also, any chain of custody issue concerns a

criminal proceeding and not a special statutory proceeding under R.C. 2743.51 et.seq.

When questioned concerning the holding in In re Treadwell, V97-32891tc (10-20-98),

where a panel of commissioners held that although the Rules of Evidence do not strictly

apply to the panel proceedings, courts are nevertheless governed by due process

limitations, the Attorney General posited there has been no suggestion that any

irregularities in the procedure for collection of the specimen existed or that any hospital

procedures were not followed.

{24}In closing, the applicants stated that the important issue that must be

addressed is timing. According to the police report the homicide occurred at 5:55 A.M.

on June 24, 2009, and the autopsy report recorded that Ms. Murphy passed away at

8:57 A.M., the same day. Initially, when the General Assembly enacted the felony

exclusion, if a victim was found to use or possess a felony drug anytime within ten years

prior to the criminally injurious conduct the claim was denied. However, when the

statute was amended to place possession or use of a felony drug under the

exclusionary criteria of contributory misconduct, the General Assembly adopted the

language “that the victim engaged in conduct at the time of the criminally injurious

conduct that was a felony violation of section 2925.11 of the Revised Code.” When this

section was moved to R.C. 2743.60(E), the felony exclusion, the same language was

Case No. V2010-50167 Page 2

retained. Accordingly, the plain language of the statute requires a nexus of the felony

drug use to the occurrence of the criminally injurious conduct.

{25}The applicants also assert that R.C. 2925.11(C)(4)(a) does not bar their

claim.

{26}R.C. 2925.11(C)(4)(a) states:

“(C) Whoever violates division (A) of this section is guilty of one of the following:

“(4) If the drug involved in the violation is cocaine or a compound, mixture,

preparation, or substance containing cocaine, whoever violates division (A) of

this section is guilty of possession of cocaine. The penalty for the offense shall

be determined as follows:

“(a) Except as otherwise provided in division (C)(4)(b), (c), (d), (e), or (f) of this

section, possession of cocaine is a felony of the fifth degree, and division (B) of

section 2929.13 of the Revised Code applies in determining whether to impose

a prison term on the offender.”

{27}The applicants argue that nowhere in the penalty section of R.C. 2925.11

does the word “derivative” appear.

{28}Moreover, the applicants assert the holding in In re Green cannot be

ignored since it is the only case where the court had to examine the issue of a trace

amount of an illegal substance, in that case PCP. However, both the panel and the

judge determined that a trace amount was not enough. Green created two step

process: first, the Attorney General must prove that the victim engaged in conduct at the

time of the criminally injurious conduct that was a felony violation of R.C. 2925.11; and

second, the causal connection between the felony drug use or possession would be

presumed to have contributed to the victim’s injury or death. But the rationale, whether

contained in former R.C. 2743.60(E) or current R.C. 2743.60(E)(1)(e) is the same.

{29}The applicants contend that the Attorney General has failed to prove the

decedent knowingly used cocaine. In support of this proposition, the applicants cite the

case of State v. Lowe (1993), 86 Ohio App. 3d 749 the presence of cocaine metabolites

Case No. V2010-50167 Page 2

in the appellant’s urine does not show that he knowingly used or possessed cocaine);

and State of North Carolina v. Darian Jaquan Harris, 361 NC 400, 646 SE 2d 526 (a

positive urinalysis for marijuana metabolites is not alone sufficient to prove that

defendant knowingly or intentionally possessed marijuana). The cases cited by the

Attorney General (State v. Scott, State v. McGown, and State v. Napper) do not support

the contention that the sole presence of cocaine metabolites supports a conviction for

felony drug use or possession.

{30}In rebuttal, the Attorney General cites the case of State v. Bassett, Lucas

App. L-01-1493, 2002-Ohio-6689, a case decided by the Sixth District Court of Appeals

in Lucas County. That case involved a person charged with violating R.C. 2903.08

(aggravated vehicular assault) and R.C. 4511.19(A)(1) (operating a motor vehicle under

the influence of alcohol or a drug of abuse). The appellate court determined the

presence of the cocaine metabolite benzoylecgonine was sufficient to prove the driver

was under the influence of cocaine at the time of the accident. The Attorney General

also cited In re White, V2006-21123tc, 2007-Ohio-3490, wherein a panel of

commissioners found that inasmuch as the decedent’s blood and urine tested positive

for the presence of cocaine and benzoylecgonine, the applicant’s claim was denied

pursuant to R.C. 2743.60(E)(1)(e). Whereupon, the hearing was concluded.

{31}R.C. 2743.60(E)(1)(e) states:

“(E) (1) Except as otherwise provided in division (E)(2) of this section, the

attorney general, a panel of commissioners, or a judge of the court of claims

shall not make an award to a claimant if any of the following applies:

“(e) It is proved by a preponderance of the evidence that the victim at the time

of the criminally injurious conduct that gave rise to the claim engaged in

conduct that was a felony violation of section 2925.11 of the Revised Code or

engaged in any substantially similar conduct that would constitute a felony

under the laws of this state, another state, or the United States.”

{32}R.C. 2925.11 provides, in pertinent part, the following:

Case No. V2010-50167 Page 2

“(A) No person shall knowingly obtain, possess, or use a controlled substance.

***

(C) Whoever violates division (A) of this section is guilty of one of the

following:

(1) If the drug involved in the violation is a compound, mixture, preparation, or

substance included in schedule I or II, with the exception of marihuana,

cocaine, L.S.D., heroin, and hashish, whoever violates division (A) of this

section is guilty of aggravated possession of drugs. The penalty for the offense

shall be determined as follows:

(a) Except as otherwise provided in division (C)(1)(b), (c), (d), or (e) of this

section, aggravated possession of drugs is a felony of the fifth degree.”

(Emphasis added.)

{33}Former R.C. 2743.60(E) (effective March 18, 1983) states:

“(E) 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.”

{34}Former R.C. 2743.60(E)(1), (2), & (3) (effective August 1, 1996) states:

“(E) Neither a single commissioner nor a panel of commissioners shall make an

award to a claimant if any of the following applies:

“(1) The victim was convicted of a felony within ten years prior to the criminally

injurious conduct that gave rise to the claim or is convicted of a felony during

the pendency of the claim.

Case No. V2010-50167 Page 2

“(2) The claimant was convicted of a felony within ten years prior to the

criminally injurious conduct that gave rise to the claim or is convicted of a felony

during the pendency of the claim.

“(3) It is proved by a preponderance of the evidence presented to the

commissioner or the panel that the victim or the claimant engaged, within ten

years prior to the criminally injurious conduct that gave rise to the claim or

during the pendency of the claim, in conduct that would constitute a felony

under the laws of this state, another state, or the United States.”

{35}Former R.C. 2743.60(E)(1)(2)(3) & (4) (effective July 1, 2000) states:

“(E) The attorney general, a panel of commissioners, or a judge of the court of

claims shall not make an award to a claimant if any of the following applies:

“(1) The victim was convicted of a felony within ten years prior to the criminally

injurious conduct that gave rise to the claim or is convicted of a felony during

the pendency of the claim.

“(2) The claimant was convicted of a felony within ten years prior to the

criminally injurious conduct that gave rise to the claim or is convicted of a felony

during the pendency of the claim.

“(3) It is proved by a preponderance of the evidence that the victim or the

claimant engaged, within ten years prior to the criminally injurious conduct gave

rise to the claim or during the pendency of the claim, in an offense of violence,

a violation of section 2925.03 of the Revised Code, or any substantially similar

offense that also would constitute a felony under the laws of this state, another

state, or the United States.

“(4) The claimant was convicted of a violation of section 2919.22 or 2919.25 of

the Revised Code, or of any state law or municipal ordinance substantially

similar to either section, within ten years prior to the criminally injurious conduct

that gave rise to the claim or during the pendency of the claim.”

Former R.C. 2743.60(F)(2) (effective July 1, 2000) states:

Case No. V2010-50167 Page 2

“(2) There is good cause to believe that the victim engaged in an ongoing

course of criminal conduct within five years or less of the criminally injurious

conduct that is the subject of the claim.

{36}“For purposes of this section, if it is proven by a preponderance of the

evidence that the victim engaged in conduct at the time of the criminally

injurious conduct that was a felony violation of section 2925.11 of the Revised

Code, the conduct shall be presumed to have contributed to the criminally

injurious conduct and shall result in a complete denial of the claim.”

{37}The Attorney General has the burden with respect to proof of the felony

exclusion contained in R.C. 2743.60(E)(1)(e) [exclusionary criteria R.C. 2743.60]. In re

Williams, V77-0739jud (3-26-79); and In re Brown, V78-3638jud (12-13-79).

{38}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.”

{39}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 evidence a

requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”

{40}Before we render a decision in this matter, we believe it is necessary to

review the history of R.C. 2743.60(E), with respect to felony drug possession and use.

On March 18, 1983, the Ohio Victims of Crime Compensation Act was amended by the

General Assembly to include a provision to bar otherwise eligible victims of crime who

either had been convicted of a felony ten years prior to the occurrence of the criminally

injurious conduct, or who had engaged in conduct, that if proven beyond a reasonable

doubt would have constituted a felony. This statutory provision barred anyone

convicted of a felony involving a drug of abuse but also prohibited persons who

engaged in felony drug abuse violations who were not criminally prosecuted. In order

Case No. V2010-50167 Page 2

to prove a felonious conduct of individuals who never had been convicted in a criminal

court, the court determined a positive toxicology report evidencing a controlled

substance in the victim’s system was sufficient. In re Dawson (1993), 63 Ohio Misc. 2d

79; (admission of drug use to medical personnel) In re Paige (1994), 66 Ohio Misc. 2d

156; (medical records containing admissions concerning drug use) In re Porter (1994),

85 Ohio Misc. 2d 29. This line of cases and its progeny allowed the Attorney General

to investigate the victim’s conduct ten years prior to the criminally injurious conduct to

determine if the victim had engaged in felony drug abuse or possession.

{41}On August 1, 1996, the felony exclusion was expanded to not only include

convictions and conduct that occurred ten years prior to the criminally injurious conduct,

but convictions or conduct that occurred during the pendency of a victim’s claim.

Accordingly, any felony drug activity that could be established by a preponderance of

the evidence that occurred after the compensation application was filed until a judge of

the court of claims rendered a final decision could be examined. In re Robinson

(1996), 86 Ohio Misc. 7d 9; In re Sun (1996), 86 Ohio Misc. 2d 14. If the applicant filed

a supplemental compensation application, the Attorney General could investigate the

period of time from the initial filing of the compensation application to a final decision

being rendered on the supplemental compensation application. Again, the prior case

law applied but the time period for examination of the victim’s conduct was expanded.

{42}The court refined the scope of R.C. 2743.60(E) as it related to felony drugs.

In In re Trice, V92-83781tc (4-26-95), the panel presumed a knowing and voluntary

ingestion of an illegal drug if confronted with a hospital’s positive toxicology report.

However, that presumption is only valid if no contrary evidence is presented. In re

Wallace, V98-38869tc (5-26-99). If the applicant could establish that ingestion of the

illegal drug was not knowing or voluntary (In re Johnson, V98-34260tc (1-31-90)) or the

testing procedures followed were faulty or unreliable (In re Treadwell, V97-32891tc

(10-20-98)) the felony exclusion did not apply.

Case No. V2010-50167 Page 2

{43}On July 1, 2000, the Ohio Victims of Crime Compensation Act was

amended again. This amendment introduced R.C. 2925.11, possession of controlled

substance, as a specific disqualifying factor. However rather than placing it under R.C.

2743.60(E) the General Assembly moved it to R.C. 2743.60(F). R.C. 2743.60(F)

disqualified or reduced an award to a victim engaged in contributory misconduct. This

change in the statutory scheme required that the Attorney General prove each element

of a violation of R.C. 2925.11 by a preponderance of the evidence and also

demonstrate by a preponderance of the evidence “that the victim engaged in conduct at

the time of the criminally injurious conduct” that constituted a violation of R.C. 2925.11.

Only then was a presumption made that the violation of R.C. 2925.11 contributed to the

criminally injurious conduct resulting in a complete denial of the claim. When felony

drug use or possession was an exclusionary bar pursuant to R.C. 2743.60(E) effective

August 1, 1996, the Attorney General was only required to prove the violation of R.C.

2925.11 either occurred within ten years of the criminally injurious conduct, or during the

pendency of the claim. This violation could be based on a positive toxicology test, an

admission by the victim, or an admission contained in a medical or police report.

{44}Accordingly, a judge in In re Sebens, V2002-50919jud (6-10-03)

determined that the victim’s admission to law enforcement officers that she took

Ecstasy, a commonly used name for MDMA (methylenedioxy-methamphetamine) a

Schedule I drug, was not causally related to her subsequent rape and R.C. 2743.60(F)

would not act as a bar to an award of reparations.

{45}In In re Green, V2003-40836jud (5-13-04) a judge of the court of claims

affirmed the panel’s decision to allow a claim based on the coroner’s opinion that the

controlled substance, in that case PCP, was not ingested by the decedent on the day of

the criminally injurious conduct, which established that the decedent had not engaged in

contributory misconduct.

Case No. V2010-50167 Page 2

{46}In In re Smith, V2003-41123tc (6-16-04) the panel elucidated the reasoning

that must be adopted when applying R.C. 2743.60(F) to a victim who tested positive for

a controlled substance. The panel stated:

{47}“We find it was the General Assembly’s intent, with respect to former R.C.

2743.60(F), to exclude only those victims or applicants from participating in the

fund whose conduct actually caused or aided the criminally injurious conduct.

Amended S.B. 153 never altered the definition of contributory misconduct as

defined in R.C. 2743.51(M). Since its inception R.C. 2743.51(M) has always

required that a victim’s or applicant’s conduct have a causal connection to the

criminally injurious conduct. According to R.C. 2743.51(M), there are three

elements that must be established before a prima facie case of contributory

misconduct can be met: (1) conduct by the victim or the claimant; (2) conduct

that is unlawful or intentionally tortious; and (3) that conduct must have a causal

relationship to the criminally injurious conduct. We fail to see how the

presence of opiates in this victim’s system has a causal relationship to him

being shot by Vincent Cross on January 8, 2003.”

{48}On June 26, 2003, the General Assembly chose to place the

exclusionary language contained in R.C. 2925.11 under R.C. 2743.60(E), the

felony exclusion, however, placed the burden on the Attorney General to prove

“by a preponderance of the evidence that the victim at the time of the criminally

injurious conduct that gave rise to the engaged in conduct that was a felony

violation of section 2925.11 of the Revised Code.” (Emphasis added). The

General Assembly also added R.C. 2743.60(E)(2) which states:

“(2) The attorney general, a panel of commissioners, or a judge of the court of

claims may make an award to a minor dependent of a deceased victim for

dependent’s economic loss or for counseling pursuant to division (F)(2) of

section 2743.51 of the Revised Code if the minor dependent is not ineligible

under division (E)(1) of this section due to the minor dependent’s criminal

Case No. V2010-50167 Page 2

history and if the victim was not killed while engaging in illegal conduct that

contributed to the criminally injurious conduct that gave rise to the claim. For

purposes of this section, the use of illegal drugs by the deceased victim shall

not be deemed to have contributed to the criminally injurious conduct that gave

rise to the claim.” (Emphasis added).

{49}Since current R.C. 2743.60(E)(1)(e) has been in effect a panel of

commissioners in In re Ferry, V2007-90188tc (8-3-07), developed a three-prong test to

determine the applicability of this statutory section when a positive toxicology report for

cocaine exists. The applicant must present sufficient evidence that: 1) he or she did

not knowingly and voluntarily ingest cocaine; 2) the toxicology results were faulty, due to

unprofessional or improper sample collection procedures. In re Parrish,

V2002-51915tc (8-1-03), 2003-Ohio-4982. The third prong of the test is that the

Attorney General has the burden to prove the applicant actually engaged in felonious

drug use at the time of the criminally injurious conduct. See In re Green,

V2003-40836jud (5-13-04), 2004-Ohio-3521.

{50}A panel of commissioners has also found that a violation of R.C.

2743.60(E)(1)(e) does not bar an award to minor dependent children for dependent’s

economic loss and counseling expenses pursuant to R.C. 2743.60(E)(2). In re Dyer,

V2004-60261tc (4-21-05) reversed on other grounds jud (10-5-05); In re Ware,

V2010-50531tc (10-29-10).

{51}From review of the case file, the testimony of the witnesses, and the

arguments presented by counsel at the hearing, we find the Attorney General has failed

to prove by a preponderance of the evidence that the applicants’ claim should be denied

pursuant to R.C. 2743.60(E)(1)(e).

{52}The Attorney General urges us to find the decedent possessed cocaine, in

violation of 2925.11 since her body contained a cocaine metabolite. It should be noted

that the toxicology report prepared as a result of Glenda Murphy’s death indicates that

cocaine was not detected in her blood. The Attorney General argues since the

Case No. V2010-50167 Page 2

definitions of coca leaves contained in R.C. 3719.41 Schedule II (A)(4), R.C.

3719.01(P)(1), and R.C. 2925.01(X)(1), (2) & (3), contain the word “derivative”, R.C.

2925.11 should apply to the decedent. The Attorney General relies on a letter and

testimony presented by Dr. John F. Wyman to make the connection between the term

derivative and metabolite. In a letter dated July 6, 2010, Dr. Wyman stated in pertinent

part:

“I have no legal training but I looked up the legal definition for derivative.

Derivative was defined as ‘coming from another’. The metabolites of cocaine

‘come from’ cocaine so it is my opinion the methylecgonine and

benzoylecgonine are derivatives of cocaine.”

{¶53}The Attorney General also asserts the panel should follow the ruling

contained in State v. Napper (November 27, 1991), 3rd Dist. No. 9-91-11; State v.

McGown (August 12, 1993), 8th Dist. No. 63491; and State v. Scott (May 5, 1994), 8th

Dist. No. 63234.

{54}In Napper, supra, the Third District Appellate Court addressed the issue of

whether the trial court erred in finding the defendant guilty, beyond a reasonable doubt,

of using cocaine in Marion County. The court held based upon “the cocaine and

paraphernalia in her residence, and the analysis of her urine along with the testimony

regarding the time that cocaine metabolites remain in the urine (T. 11/27/90 p.321),

amounted to sufficient evidence before the jury from which it could reasonably infer

beyond a reasonable doubt that at least one element of the offense occurred in Marion

County.” Napper, supra, it should be noted under R.C. 2925.11 the state needed to

prove the decedent either knowingly obtained, possessed or used a controlled

substance. Accordingly, in Napper, with cocaine and cocaine paraphernalia at the

residence it is speculative as to how much weight the trier of fact gave to cocaine

metabolites in the defendant’s system. Furthermore, the defendant’s conviction for

violation of R.C. 2925.11 during the period January 9, 1990 through February 9, 1990

was upheld. In the case at bar it must be established that the decedent “at the time of

Case No. V2010-50167 Page 2

the criminally injurious conduct . . .engaged in conduct that was a felony violation of

2925.11.” Accordingly, the holding in State v. Napper does not provide this panel with

any guidance with respect to the issue at bar.

{55}State v. McGowan concerned an issue of whether the defendant used

cocaine and was consequently under the influence when he was involved in a fatal

automobile accident. The Eighth District Court of Appeals affirmed the defendant’s

conviction based on his positive test for “high levels” of cocaine metabolites and “free”

cocaine in his urine. The defendant in that case was tested at 9:50 P.M. and testimony

presented at the trial indicated that based on cocaine metabolites, which were fifteen

times greater than what was necessary for a positive test, and the presence of “free

cocaine” in his urine, he would have had to have used the cocaine between 5:50 P.M.

and 7:50 P.M. The accident occurred at 8:00 P.M. Therefore the court found he was

under the influence of cocaine at the time of the accident. In the case at bar, we have

no evidence that “free cocaine” was contained in the blood sample nor was any

testimony presented that Glenda Murphy had “high levels” of cocaine metabolites in her

system when the autopsy was performed.

{56}Finally, in State v. Scott the Eighth District Court of Appeals held for the

purposes of a conviction under R.C. 2925.11, whether the cocaine was in the

defendant’s “pocket or his urine is of no effect.” The defendant in that case was

convicted of aggravated murder and a violation of R.C. 2925.11. Inasmuch as cocaine

metabolites remain in a person’s urine for 72 hours, the defendant’s conviction under

R.C. 2925.11 was affirmed since a timeline was presented that the defendant had to

have ingested cocaine within hours of the shooting. However, in the case at bar R.C.

2743.60(E)(1)(e) places a qualifier that does not exist with solely a conviction under

R.C. 2925.11. R.C. 2743.60(E)(1)(e) not only requires a violation of R.C. 2925.11, but

also requires that a violation occur at the time of the criminally injurious conduct.

{57}A review of the history of the felony exclusion reveals that when the

exclusion was first enacted by the General Assembly in March 1983, a person who

Case No. V2010-50167 Page 2

knowingly used, possessed, or obtained cocaine within ten years prior to the occurrence

of the criminally injurious conduct was excluded from participating in the program if such

person had been convicted or it could be established by a preponderance of the

evidence that said person engaged in such conduct. At that time, there was no

requirement that the cocaine be connected to the criminally injurious conduct in any

manner. When this statutory provision was amended by the General Assembly in

August 1996, the time frame for exclusion was extended to include any conviction or

conduct, that could be proven by a preponderance of the evidence, which occurred

during the pendency of the applicant’s claim. Again conviction or conduct involving

cocaine was excluded without any causal connection to the criminally injurious conduct.

{58}In July 2000, the General Assembly specifically addressed R.C. 2925.11,

but rather than place this criminal code section under R.C. 2743.60(E), as had been

done since the inception of the program, this section was moved to R.C. 2743.60(F).

R.C. 2743.60(F) provides for the reduction or denial of awards dealing with contributory

misconduct. Of all the sections in the criminal code concerning felonious conduct, R.C.

2925.11 was singled out for this special treatment. While the General Assembly

specifically addressed three other criminal code sections, R.C. 2925.03, trafficking and

aggravated trafficking in drugs; R.C. 2919.22, endangering children; and R.C. 2919.25,

domestic violence, these were placed under R.C. 2743.60(E). Accordingly, they were

status offenses that did not require any causal connection to the criminally injurious

conduct.

{59}However, R.C. 2743.60(F) was amended to state:

“For purposes of this section, if it is proven by a preponderance of the evidence

that the victim engaged in conduct at the time of the criminally injurious conduct

that was a felony violation of section 2925.11 of the Revised Code, the conduct

shall be presumed to have contributed to the criminally injurious conduct and

shall result in a complete denial of the claim.” (Emphasis added).

Case No. V2010-50167 Page 2

{60}The General Assembly provided that if the Attorney General could prove,

by a preponderance of the evidence, that the applicant or the victim engaged in a

felonious violation of R.C. 2925.11 at the time of the criminally injurious conduct then it

would be conclusively presumed that this conduct was causally related to the criminally

injurious conduct resulting in a complete denial of the applicant’s claim. Therefore, the

Attorney General had the burden of proof to prove each element of a felonious violation

of R.C. 2925.11, by a preponderance of the evidence. Furthermore, case law held that

the presumption created by the General Assembly was a rebuttal presumption. See, In

re Bealer, V2003-40321tc (12-3-03), 2003-Ohio-7324; In re Green, V2003-40836jud

(5-13-04), 2004-Ohio-3521; In re Wilson, V2004-60997tc (4-21-05), 2005-Ohio-2648;

and In re Smith, V2003-41123tc (6-16-04), 2004-Ohio-4179. These cases stood for the

proposition that once the Attorney General establishes the felonious violation of R.C.

2925.11, then the burden of proof shifts to the applicant but it is a rebuttal presumption

that the applicant can overcome by presenting testimonial or documentary evidence.

Nevertheless, the Attorney General has the burden to show the violation of R.C.

2925.11 occurred at the time of the criminally injurious conduct.

{61}On June 26, 2003, the General Assembly again amended R.C. 2743.60(E)

and R.C. 2743.60(F). This amendment resulted in the exclusion regarding R.C.

2925.11 being moved from R.C. 2743.60(F) and placed under a new statutory section in

R.C. 2743.60(E). This new amendment deleted language concerning the “conclusive

presumption” but retained the language requiring that it be “proved by a preponderance

of the evidence that the victim at the time of the criminally injurious conduct that gave

rise to the claim engaged in conduct that was a felony violation of section 2925.11 of the

Revised Code.” (Emphasis added).

{62}Curiously, the General Assembly added R.C. 2743.60(E)(2). This

statutory section allowed minor dependents of a deceased victim who was in violation of

R.C. 2743.60(E)(1)(a)-(e) to receive an award for dependent’s economic loss and

counseling expenses as long as the minor dependent was not personally disqualified

Case No. V2010-50167 Page 2

pursuant to R.C. 2743.60(E)(1) or the decedent was not engaged in contributory

misconduct at the time of the death. The final sentence of R.C. 2743.60(E) states: “For

purposes of this section, the use of illegal drugs by the decedent victim shall not be

deemed to have contributed to the criminally injurious conduct that gave rise to this

claim.” Tacitly, the General Assembly was acknowledging that illegal drug use needed

a causal connection to the criminally injurious conduct. For a minor dependent to be

excluded under this section, the decedent’s drug activity had to constitute contributory

misconduct. Anything less would result in an award to the minor dependent. In order

to deny the case at bar, the Attorney General must prove, by a preponderance of the

evidence, each element of R.C. 2925.11. R.C. 2925.11 in pertinent part states:

“(A) No person shall knowingly obtain, possess, or use a controlled substance.

“(C) Whoever violates division (A) of this section is guilty of one of the following:

“(1) If the drug involved in the violation is a compound, mixture, preparation, or

substance included in schedule I or II, with the exception of marihuana,

cocaine, L.S.D., heroin, and hashish, whoever violates division (A) of this

section is guilty of aggravated possession of drugs.”

{63}Nowhere in this statutory definition are the words derivative or metabolite

used in connection with violation of this criminal section. Furthermore, a review of the

penalty sections of this statute reveal the punishment imposed is based on bulk amount

or grams. Accordingly, the Attorney General’s argument that a violation of R.C.

2925.11 can be established by derivatives or metabolites of an illegal drug does not

have statutory support.

{64}Finally, based upon a review of the claim file and the evidence presented at

the hearing this panel finds that the Attorney General was unable to prove by a

preponderance of the evidence that the decedent engaged in a violation of R.C.

2925.11 at the time of the criminally injurious conduct. Accordingly, the February 9,

2010 decision of the Attorney General is reversed.

Case No. V2010-50167 Page 2

_______________________________________

GREGORY P. BARWELL

Presiding Commissioner

_______________________________________

ELIZABETH LUPER SCHUSTER

Commissioner

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: GLENDA L. MURPHY

CHRISTOPHER M. CORBIN

SILVER R. CORBIN

Applicants

Case No. V2010-50167

Commissioners:

Gregory P. Barwell, Presiding

Elizabeth Luper Schuster

OPINION OF A TWO-

COMMISSIONER PANEL

IT IS THEREFORE ORDERED THAT

Case No. V2010-50167 Page 2

{65}1) The February 9, 2010 decision of the Attorney General is REVERSED

and judgment is rendered in favor of the applicants;

{66}2) This claim is remanded to the Attorney General for total economic loss

calculations and decision;

{67}3) This order is entered without prejudice to the applicants’ right to file a

supplemental compensation application, within five years of this order, pursuant to R.C.

2743.68;

{68}4) Costs are assumed by the court of claims victims of crime fund.

_______________________________________

GREGORY P. BARWELL

Presiding Commissioner

_______________________________________

ELIZABETH LUPER SCHUSTER

Commissioner

ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2011\March 2011\V2010-50167 Murphy.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 5-6-11

Jr. Vol. 2278, Pgs. 102-103

Sent to S.C. Reporter 8-30-11