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In Re: Christian A. Lodge Jaclyn J. Mental

October 19, 2010

IN RE: CHRISTIAN A. LODGE JACLYN J. MENTAL CONSTANCE SWACKHAMMER LARRY E. SWACKHAMMER APPLICANTS


COMMRSOF A THREE- I

Cite as In re Lodge,

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

Commissioners: Karl C. Kerschner, Presiding Gregory P. Barwell Susan G. Sheridan

SIONER PANEL

{1}On March 19, 2009, the applicants filed a compensation application as the result of the death of Christian A. Lodge. On July 9, 2009, the Attorney General issued a finding of fact and decision denying the applicants' claims due to the fact that the decedent's death was not the result of criminally injurious conduct. On August 5 and August 10, 2009, the applicants submitted requests for reconsideration. On November 2, 2009, the Attorney General rendered a Final Decision finding no reason to modify the initial decision. On February 18, 2010, the applicants filed a notice of appeal from the November 2, 2009 Final Decision of the Attorney General. Hence, a hearing was held before this panel of commissioners on August 4, 2010 at 3:35 P.M.

{2}The applicant, Larry Swackhammer,*fn1 and his attorney, Mark Poole, appeared at the hearing, while Assistant Attorney General David Lockshaw represented the state of Ohio.

{3}The sole issue on appeal was whether the death of Christian A. Lodge was the result of criminally injurious conduct. The applicant made an oral argument concerning this issue.

{4}The applicant asserts that based upon the coroner's report the cause of the decedent's death was a blunt impact to the head and the manner of death was a homicide. On the night of the fatal injury, the decedent and a companion were engaged in a "playful" wrestling match. Both individuals had been drinking. The applicant proceeded to recount the statements of witnesses to the incident as contained in the Columbus Division of Police investigating report #090101004. The applicant related that one witness, David Segalchik described hearing two cracks, the punch that hit the decedent and the decedent's head hitting the pavement. However, he did not see who hit the decedent. Alexander Knyazhsky, who was interviewed on the night of the incident, stated he was in a group that approached the decedent and his companion who were wrestling and then a pushing and shoving match ensued. Whereupon, he heard two pops; the punch that hit the decedent and the decedent's head hitting the sidewalk.

{5}Next, the applicant summarized the statement of Nils Root, a member of the group that approached the decedent and his companion. Mr. Root asked the wrestlers what they were doing, at which time the decedent and his companion approached the group resulting in a confrontation. The applicant contends the group incited the situation. Based upon Mr. Root's version of the events, Mr. Lodge "took a swing at" him, Mr. Root's friends got in between Mr. Root and Mr. Lodge, he walked away and subsequently Mr. Lodge was punched by an unidentified individual.

{6}The applicant contends that with the exception of Mr. Root, none of the other individuals in the group contend that Mr. Lodge tried to assault them. Based upon the exiguous nature of the evidence and the intoxication of the participants the police were unable to determine exactly what transpired to cause the fatal injuries sustained by Mr. Lodge.

{7}The applicant asserts the Attorney General erroneously bases the denial of this claim on a lack of prosecution of an offender. The applicant contends the Crime Victims Compensation Act does not require a conviction in order to find an individual eligible to receive compensation from the program. In support of his position, the applicant referred the panel to In re Adams (1990), 61 Ohio Misc. 2d 571. The applicant asserts that this case stands for the proposition that a criminal prosecution is unnecessary in order to establish criminally injurious conduct. Furthermore, the applicant contends reliance on In re Shaffer, V2008-30367tc (8-26-09) is misplaced. The applicant contends the reliance on the opinion of a prosecutor or a grand jury is counter to the tradition that a panel of commissioners should make its own decision by weighing the evidence on a de novo basis. Finally, applicant asserts the police report places too much reliance on the statements of the group of individuals that approached the decedent and their friends. Accordingly, the police did not gain a true picture of what happened on the night of the fatal injury. This flawed investigation led the prosecutor to the erroneous conclusion that no crime was committed. However, the applicant contends that solely based upon the evidence contained in the claim file, without providing any further testimonial or other substantive evidence at the hearing, it has been established, by a preponderance of the evidence, that the decedent's death was the result of criminally injurious conduct.

{8}The Attorney General reasons that a lack of sufficient evidence exists in order to prove the existence of criminally injurious conduct, by a preponderance of the evidence. Whereupon, the hearing was concluded.

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

"(C) 'Criminally injurious conduct' means one of ...


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