In re Moore

[Cite as In re Moore, 2010-Ohio-2374.]

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: ERICKA E. MOORE

ERICKA E. MOORE

Applicant

Case No. V2009-40544

Commissioners:

Gregory P. Barwell, Presiding

Randi M. Ostry

Elizabeth Luper Schuster

ORDER OF A THREE-COMMISSIONER PANEL

{¶ 1} On December 8, 2008, the applicant, Ericka Moore, filed a compensation

application as the result of an assault which occurred on September 9, 2008. On

March 26, 2009, the Attorney General issued a finding of fact and decision denying the

claim pursuant to R.C. 2743.60(C), failure to fully cooperate with law enforcement.

This determination was based upon inconsistent statements the applicant had provided

to law enforcement and to the Newark City Law Director. The applicant initially stated

she was a victim of an assault to law enforcement, but later provided a sworn statement

to the City Law Director that her injuries were sustained as the result of an accident.

On April 23, 2009, the applicant submitted a request for reconsideration. The applicant

asserted she changed her story based upon physical threats from the offender, and that

she should not be disqualified from receiving an award of reparations on that basis.

{¶ 2} On June 19, 2009, the Attorney General rendered a Final Decision finding

no reason to modify its initial decision. On July 13, 2009, the applicant filed a notice of

appeal from the June 19, 2009 Final Decision of the Attorney General. Hence, a

hearing was held before this panel of commissioners on January 20, 2010 at 12:20 P.M.

Case No. V2009-40544 - 2 - ORDER

The applicant, Ericka Moore, and her attorney Mark Poole, appeared on her behalf

while the state of Ohio was represented by Assistant Attorneys General Janean Weber

and Tyler Brown.

{¶ 3} Based upon the briefs filed prior to this hearing the issues to be addressed

include whether the applicant qualifies as a victim of criminally injurious conduct as

defined by R.C. 2743.51(C)(1) and whether the applicant fully cooperated with law

enforcement as is required by R.C. 2743.60(C).

{¶ 4} Ms. Moore recounted her history of domestic violence at the hands of the

offender. The applicant testified that on September 9, 2008, her husband, the offender,

assaulted her in front of her two young children. Consequently, she called the battered

women’s shelter which in turn called the police.

{¶ 5} After the police report was made on September 9th, the offender

threatened her with physical harm and/or death if she followed through on the

prosecution of this matter. Based upon her history with the offender she found these

threats to be credible.

{¶ 6} Ms. Moore recounted that she provided the police with a written statement

concerning the assault, and the police took photos of her injuries. The applicant

concedes that on October 3, 2008, she submitted a sworn written statement to the City

Law Director’s office that her injuries on the night of September 9, 2008 were the result

of an accident. She testified she made the statement in response to threats made by

the offender and because she was in fear of her life. Ms. Moore related even after she

made the written statement to the Law Director’s office, the offender continued to stalk,

threaten, and harass her. Consequently, due to the continual fear of the offender, she

filed for a civil protection order. Ms. Moore affirmatively stated that she was a victim of

an intentional assault.

{¶ 7} The applicant related that she spoke to Ellen Alheim of the Newark City

Law Director’s office. Ms. Alheim informed her that her statement of October 3rd would

be “thrown out,” and the case would proceed to trial. Ms. Moore asserted she told Ms.

Case No. V2009-40544 - 3 - ORDER

Alheim that she would testify at the trial. Ms. Moore testified that she never had the

opportunity to speak with Amy Weeks, the prosecutor for the city of Newark. She

stated that prior to the criminal trial, Ms. Moore was informed that the case would be

dismissed.

{¶ 8} Upon cross-examination, the applicant admitted that she requested that

the charges be dismissed against her husband in the October 3rd letter. The applicant

admitted that she signed a sworn statement to that effect. The applicant admitted that

between October 1st, the day charges were filed against the offender, and October 3rd,

the date of the letter, she did not report any threats made by the offender against her to

either the police or the prosecutor. Whereupon, the testimony of the applicant was

concluded.

{¶ 9} The Attorney General called Amy Weeks, Newark City Assistant Law

Director to testify via telephone. Ms. Weeks stated she was assigned to prosecute

Joshua Moore for Domestic Violence as the result of an assault committed against the

applicant, Ericka Moore. Ms. Weeks indicated that Ms. Moore’s testimony was

essential to the successful prosecution of this case. Ms. Weeks testified that the

inconsistencies between the police report and the October 3rd statement made it

impossible to prosecute the case. The City Law Director’s office received no

communications concerning threats made against Ms. Moore. Ms. Weeks stated that

she first learned of threats against Ms. Moore after the charges against Mr. Moore had

been dismissed.

{¶ 10} Ms. Weeks testified she had a close relationship with Ellen Alheim and at

no time during their discussions concerning this matter did Ms. Alheim relate to her that

Ms. Moore was threatened or harassed by the offender. Furthermore, she testified that

Ellen Alheim would never tell Ms. Moore that Ms. Moore’s statement of October 3rd

would be disregarded and the case would proceed to trial.

{¶ 11} Upon cross-examination, Ms. Weeks admitted that victims are reluctant to

testify in domestic violence cases and that she has prosecuted cases where a victim

Case No. V2009-40544 - 4 - ORDER

was unwilling to testify. However, she stated that in her experience, victims testify

honestly when they are called. Ms. Weeks stated she never spoke to Ms. Moore

personally. Ms. Weeks testified that Ms. Moore was subpoenaed to testify and was not

notified that the charges had been dismissed until shortly before trial. Finally, Ms.

Moore has been charged with no crime in relation to the statements she presented.

{¶ 12} Upon questioning by the panel of commissioners, Ms. Weeks stated she

was aware a civil protection order had been issued against the offender prior to the

dismissal of the criminal charges. Ms. Weeks also conceded that to obtain a civil

protection order, allegations of threats, harassment, OR physical intimidation by the

offender would have to be proven. Furthermore, Ms. Weeks related a civil protection

order of October 2, 2008 was dismissed for failure to offer sufficient proof and a civil

protection order obtained on November 18, 2008 was dismissed on December 11,

2008, based upon the request of the applicant. Whereupon, the testimony of Amy

Weeks was concluded.

{¶ 13} The applicant asserts that criminally injurious conduct has been

established by calling the police at the time of the incident, filing a police report, and

having the police take pictures to document the injuries sustained. Subsequently,

charges were filed based upon this report.

{¶ 14} The applicant further asserts that after charges were filed against the

offender, she was harassed, threatened and, consequently, in fear she wrote the

October 3rd statement for the sole purpose of getting the offender to stop his harassing

behavior. However, the offensive behavior did not stop and the applicant filed for a civil

protection order. The civil protection order was granted ex parte. At the subsequent

hearing the civil protection order was dismissed and a restraining order was issued

which prohibits physical contact. The restraining order was rendered on December 11,

2008. The applicant further states that her multiple meetings with the Newark Law

Director’s Victim Advocate Ellen Alheim evidence that she was cooperating. Ms.

Moore was subpoenaed to testify and never stated that she was refusing to testify.

Case No. V2009-40544 - 5 - ORDER

The applicant cooperated in this matter and the ultimate decision not to prosecute was

made by the prosecutor, not Ms. Moore. Accordingly, the applicant argues that the

Attorney General’s decision should be reversed.

{¶ 15} The Attorney General stated the panel must consider the definition of

failure to fully cooperate. Any action, inaction, or inexcusable neglect which

substantially impedes or impairs the investigation or prosecution of a matter is a failure

to fully cooperate. In the case at bar, Ms. Moore did not request charges be filed, but

charges were filed only after review of the police report by the prosecutor. During the

time from the initial incident on September 9th to the filing of charges on October 1st, no

documentation exists to prove that Ms. Moore was being threatened or harassed by the

offender. Furthermore, the Attorney General believes this panel should give deference

to the prosecutor in this case, since ultimately she is the one who has to evaluate the

strengths or weaknesses of the criminal case.

{¶ 16} Furthermore, the Attorney General urges the panel to follow the judge’s

holding in In re Colbert III, V92-54501jud (6-29-95). In that case, the judge determined

where the victim was the only witness to the event and chose not to proceed with the

prosecution of the offender, that constituted a failure to fully cooperate within the

meaning of R.C. 2743.60(C).

{¶ 17} Finally, the Attorney General cites the case of In re Young, V84-36249sc

(10-25-84) affirmed tc (1-31-85). A single commissioner held that reporting an assault

as an accident does not constitute full cooperation with a law enforcement agency.

The Attorney General concluded by stating the applicant’s possible criminal violations

(i.e.; falsification, obstruction of official business, obstruction of justice); should not be

overlooked. Therefore, the Attorney General’s Final Decision should be affirmed.

Whereupon, the hearing was concluded.

{¶ 18} R.C. 2743.51(C)(1) in pertinent part states:

“(C) ‘Criminally injurious’ conduct means one of the following:

Case No. V2009-40544 - 6 - ORDER

“(1) For the purposes of any person described in division (A)(1) of this section,

any conduct that occurs or is attempted in this state; poses a substantial threat

of personal injury or death; and is punishable by fine, imprisonment, or death,

or would be so punishable but for the fact that the person engaging in the

conduct lacked capacity to commit the crime under the laws of this state.”

{¶ 19} The applicant must prove criminally injurious conduct by a preponderance

of the evidence. In re Rios (1983), 8 Ohio Misc. 2d 4.

{¶ 20} R.C. 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.”

{¶ 21} The Attorney General has the burden with respect to proof of

non-cooperation with law enforcement authorities [exclusionary criteria R.C. 2743.60].

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

{¶ 22} “As a general rule any action, inaction, or inexcusable neglect by an

applicant which substantially impedes or impairs investigation or prosecution

proceedings which have been initiated by the law enforcement authorities or which

would have been initiated but for the action, inaction, or inexcusable neglect, constitutes

a failure to fully cooperate as required by R.C. 2743.60(C).” In re Dray (1989), 61 Ohio

Misc. 2d 417, 419.

{¶ 23} The unique circumstances of domestic violence cases should be taken

into consideration when deciding cases under R.C. 2743.60(C). In re Sims,

V95-50361tc (10-3-97).

{¶ 24} 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.”

Case No. V2009-40544 - 7 - ORDER

{¶ 25} 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.”

{¶ 26} 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.

{¶ 27} From review of the case file and upon full and careful consideration given

to all the testimony presented and the arguments of the parties at the hearing, we first

find that the applicant has met her burden of proof to establish she was a victim of

criminally injurious conduct as defined by R.C. 2743.51(C)(1), by a preponderance of

the evidence. The initial police report shows that the applicant told the officers her

husband had struck her, and that she showed visible signs of injury. The officers

directed this report to the attention of the City Law Director. Therefore, we find that the

applicant has satisfied her burden.

{¶ 28} R.C. 2743.60(C) requires that the applicant shall fully cooperate with law

enforcement. The Attorney General urges us to consider the inconsistent statements

the applicant provided to law enforcement and the City Law Director’s office. The

Attorney General contends these inconsistencies made prosecution of the offender

impossible.

{¶ 29} This court has recognized that domestic violence should be treated

differently than assaults occurring between strangers. Ellen Alheim succinctly

characterized the internal and external conflicts suffered by the applicant as a victim of

domestic violence in an email dated May 18, 2009 to an Attorney General investigator.

She stated:

Case No. V2009-40544 - 8 - ORDER

{¶ 30} “Based on my conversations with Ms. Ericka Moore and 20 years

experience working with abused women, I believe her to be a text book classic victim of

domestic violence. She has very low self-esteem and tends to minimize Mr. Moore’s

culpability for the abuse, believing instead - as Mr. Moore has told her - she is to blame

because she’s a bad wife, incompetent, ‘mental’, too this or too that ... Does she feel

threatened by Mr. Moore? I believe she does but it’s situational. When he’s in her

face yelling and pushing her around, yes, she’s afraid. She just doesn’t blame him for

his behavior. It’s always someone else’s fault. Her story did change and she didn’t

always want to carry through with prosecution because according to her, he’d

threatened to get custody of their children and cause her to lose custody of a child from

another relationship by ‘proving’ to domestic relation’s [sic] court that she was

incompetent as a mother, mentally unstable and a liar. She really believes he is

omnipotent in that way especially since he has his mother’s support and would be able

to hire an attorney to represent him in a custody action. Mrs. Moore believes herself to

be helpless against him. She has no money, no attorney and does suffer from

post-traumatic stress disorder and takes medication - all of which Mr. Moore said he’d

use against her in court. In my opinion, Mr. Moore has been able to manipulate her

and her willingness to cooperate with prosecution by threatening to take her children

and have her declared to be incompetent. It does not surprise me that her version of

the abusive incident wavered. To me, it does not indicate that she is a liar, but a

woman who feels threatened by the ‘power’ of her husband. She did carry through with

filing a petition for a Civil Protection Order. The Ex Parte was granted and a 3 year

Consent Agreement was signed by both parties.”

{¶ 31} This statement corroborates the applicant’s testimony that she felt coerced

to make a written statement to the Law Director which exculpated the offender. We

find the applicant’s statements credible concerning the offender’s continued

harassment, stalking, and threatening behavior toward the applicant. Again, the

statements are corroborated by the fact that she obtained an ex parte civil protection

Case No. V2009-40544 - 9 - ORDER

order against the offender on November 18, 2008. The petition for the civil protection

order outlines the harassing, stalking, and violent behavior the applicant was forced to

endure. On December 11, 2008, an agreed entry was rendered by Judge Russell A.

Steiner, Licking County Court of Common Pleas, Domestic Relations Division which

contained the following provisions:

{¶ 32} “Respondent’s (Joshua Moore) parents shall pickup and drop off the minor

children during stated visitation period. Petitioner (Ericka Moore) shall arrange any

additional discretionary visitation with Respondent’s parents. All child exchanges shall

occur at the residence of the Petitioner. Respondent shall not be present during said

child exchanges.”

{¶ 33} The court recognized it was in the best interest of the applicant that the

offender have no contact with her even when he was exercising his visitation rights.

{¶ 34} The Attorney General urges this panel to follow the holding in In re Colbert

III, V92-54501jud (6-29-95). In Colbert III, the applicant was a victim of a gunshot

wound, the suspected offender was arrested and jailed, and later released when the

applicant signed a non-prosecution form. However, that case differs from the case at

bar. In Colbert III, the offender turned himself in for the shooting incident. In the case

at bar, there was no arrest and there was continuing harassment, stalking and threats

by the offender which was not evidenced in the Colbert III case.

{¶ 35} Finally, the Attorney General directs us toward In re Young, a case

standing for the proposition that reporting an assault as an accident does not constitute

full cooperation. However, the facts in Young are distinguishable from the facts of the

case at bar. In Young the applicant stated he was assaulted, when in actuality he had

fallen through a glass door. A police report compiled at the time of the incident

revealed the applicant as well as other witnesses reported the applicant sustained injury

by accidentally falling through the glass door. The applicant changed his story at the

time of filing the compensation application. In the case at bar, the police report

Case No. V2009-40544 - 10 - ORDER

confirms the applicant was a victim at the time of the incident and only through coercion

by the offender did she change her story.

{¶ 36} Finally, Amy Weeks, Assistant City Law Director, testified that she was

unaware that the applicant was being harassed, stalked, or threatened during the

pendency of the criminal charges. However, she did admit that her Victim’s Advocate

Ellen Alheim met with the applicant numerous times during this period. From a review

of the previously mentioned email it was apparent that the applicant expressed her

concerns to Ms. Alheim. Whether Ms. Alheim expressed those concerns to Ms. Weeks

is not the applicant’s obligation and should not act as a bar to her eligibility under the

program.

{¶ 37} For the foregoing reasons, we find that the Attorney General has failed to

meet its burden with respect to R.C. 2743.60(C). Accordingly, the June 19, 2009

decision of the Attorney General is reversed.

IT IS THEREFORE ORDERED THAT

{¶ 38} 1) The June 19, 2009 decision of the Attorney General is REVERSED

and judgment is rendered in favor of the applicant;

{¶ 39} 2) This claim is remanded to the Attorney General for total economic

loss calculations and decision;

{¶ 40} 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;

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

_______________________________________

GREGORY P. BARWELL

Presiding Commissioner

Case No. V2009-40544 - 11 - ORDER

_______________________________________

RANDI M. OSTRY

Commissioner

_______________________________________

ELIZABETH LUPER SCHUSTER

Commissioner

A copy of the foregoing was personally served upon the Attorney General and

sent by regular mail to Licking County Prosecuting Attorney and to:

Filed 5-14-2010

Jr. Vol. 2275, Pgs. 110-121

To S.C. Reporter 5-27-2010