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In re Murphy

Court of Claims of Ohio

September 29, 2011

IN RE: GLENDA L. MURPHY CHRISTOPHER M. CORBIN SILVER R. CORBIN Applicants

DECISION

JOSEPH T. CLARK Judge.

{¶1} This matter came on to be considered upon the Attorney General's appeal from the May 6, 2011 order issued by the panel of commissioners. The panel's determination reversed the final decision of the Attorney General, which denied applicant's claim for an award of reparations pursuant to R.C. 2743.60(E)(1)(e) based upon the finding that the decedent, Glenda L. Murphy, had tested positive for cocaine at the time of her death.

{¶2} R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the Court of Claims Commissioners that the requirements for an award 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 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). The panel found, upon review of the evidence, that the Attorney General failed to present sufficient evidence to meet his burden.

{¶3} The standard for reviewing claims that are appealed to the court is established by R.C. 2743.61(C), which provides in pertinent part: "If upon hearing and consideration of the record and evidence, the judge decides that the decision of the panel of commissioners is unreasonable or unlawful, the judge shall reverse and vacate the decision or modify it and enter judgment on the claim. The decision of the judge of the court of claims is final."

{¶4} In its decision, the panel of commissioners noted that 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 applicants' claims for an award of reparations pursuant to R.C. 2743.60(E)(1)(e).

{¶5} R.C. 2743.60(E)(1)(e) provides, in pertinent part:

{¶6} "(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:

{¶7} "* * *

{¶8} "(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." (Emphasis added.)

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

{¶10} "(A) No person shall knowingly obtain, possess, or use a controlled substance.

{¶11} "* * *

{¶12} "(C) Whoever violates division (A) of this section is guilty of one of the following: {¶13} "(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:

{¶14} "(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 ...


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