[Cite as In re Richardson, 2010-Ohio-3947.]

                                              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: CRAIG V. RICHARDSON


CRAIG V. RICHARDSON

            Applicant


 Case No. V2009-40897

Commissioners:
Elizabeth Luper Schuster, Presiding
Gregory P. Barwell
Randi M. Ostry
ORDER OF A THREE-COMMISSIONER PANEL

          {¶ 1} On May 19, 2009, the applicant, Craig Richardson, filed a compensation
application as the result of an assault which occurred on April 25, 2009. On August 31,
2009, the Attorney General issued a finding of fact and decision finding the applicant
met the jurisdictional requirements necessary to qualify for an award of reparations.
However, the Attorney General asserted all or some of the applicant’s medical
expenses could be reimbursed from Starbridge Insurance Company, a readily available
collateral source. If after submission of the expenses to the collateral source not all
expenses are reimbursed, a supplemental compensation application could be filed.
The Attorney General further determined the applicant did not incur work loss or crime
scene cleanup as a result of the incident on April 25, 2009. On October 8, 2009, the
applicant submitted a request for reconsideration. On December 7, 2009, the Attorney
General rendered a Final Decision, wherein the Attorney General stated that after
further investigation, it was determined that the applicant engaged in substantial
contributory misconduct; the voluntary participation in a fight with the offender.
Therefore, the Attorney General denied the applicant’s claim for an award of
reparations. On December 28, 2009, the applicant filed a notice of appeal from the
Case No. V2009-40897                      - 2 -                                  ORDER


December 7, 2009 Final Decision of the Attorney General. Hence, a hearing was held
before this panel of commissioners on March 17, 2010 at 12:20 P.M.


          {¶ 2} The applicant, Craig Richardson, and his attorney, Michael Falleur,
attended the hearing, while the state of Ohio was represented by Assistant Attorneys
General Matthew Karam and Tyler Brown.
          {¶ 3} The applicant contends he was a victim of criminally injurious conduct
pursuant to R.C. 2743.51(L)(2), in that he was injured while making a good faith effort to
prevent criminally injurious conduct. The applicant asserts his injuries resulted from his
efforts to prevent his brother Kenneth from assaulting Kenneth’s girlfriend Dedra
Montag.
          {¶ 4} The Attorney General argued that both the Columbus Police Department
and the Prosecutor’s Office reviewed the facts of this case and refused to press any
criminal charges.     Accordingly, the Attorney General’s Final Decision should be
affirmed.
          {¶ 5} The applicant Craig Richardson took the witness stand. Mr. Richardson
related that on April 25, 2009, he, his brother Kenneth, and Kenneth’s girlfriend Dedra
Montag were present at his brother’s residence. Mr. Richardson stated that there had
been a history of domestic violence between the couple.
          {¶ 6} On the night of the incident, the applicant heard loud noises coming from
the bedroom of the residence. When he went to explore the situation he observed his
brother holding Dedra’s wrists. The situation calmed down, but a short time later it
escalated in the living room.    At this point, Mr. Richardson intervened and told his
brother to let Dedra go.     A verbal altercation occurred between the brothers with
Kenneth requesting that the applicant leave the premises. The applicant refused and
stated that Kenneth should make him leave.          Whereupon, a physical altercation
occurred. The applicant was expelled from the residence through the screen door.
Case No. V2009-40897                        - 3 -                             ORDER


Mr. Richardson re-entered the residence and observed Kenneth assaulting Dedra.
Kenneth Richardson attacked the applicant until he lost consciousness.


         {¶ 7} The applicant testified that as a result of the injuries he sustained he
spent approximately one week in the hospital. At no time during his hospital stay did
police question him about the incident. Months after the incident the applicant went to
police and related his side of the story.
         {¶ 8} Upon cross-examination, the applicant testified the incident happened as
one continuous event and Dedra’s statements in the police report that Kenneth left the
premises to cool down were erroneous. Mr. Richardson admitted that Kenneth told him
to leave, he refused, and he told Kenneth to make him. He also conceded that no
criminal charges were pressed against his brother with respect to this incident.
Whereupon, the testimony of the applicant was concluded.
         {¶ 9} The applicant next called Vance Summers to testify. He related that he
was acquainted with the Richardson brothers for approximately four years.          Mr.
Summers testified concerning a domestic violence incident between Kenneth and Dedra
on December 22, 2009.
         {¶ 10} Upon cross-examination, Mr. Summers admitted he had no personal
knowledge of the incident occurring on April 25, 2009. Whereupon, the testimony of
Mr. Summers was concluded. At that point the applicant rested his case.
         {¶ 11} The Attorney General called Columbus Police Officer Robert Reffitt to
testify. The officer testified that he was called to the scene of a disturbance between
the Richardson brothers on April 25, 2009. Officer Reffitt was handed the police report
he completed for the incident in question. Officer Reffitt related he spoke to Dedra
Montag at the scene and she did not relate that she had been a victim of an assault.
He did not observe any injuries sustained by Ms. Montag. Officer Reffitt was unable to
speak with the applicant since initially he was unconscious and later appeared
incoherent.
Case No. V2009-40897                       - 4 -                                  ORDER




        {¶ 12} Debra related to him that there were two separate fights on the night of
the incident. She related there was a verbal argument between herself and Kenneth,
and the applicant intervened to break them up. Kenneth related to the officer that he
went for a walk to cool off and when he returned the applicant was still at the residence.
Dedra confirmed that Kenneth had left the residence.
        {¶ 13} The officer related that he could have arrested both brothers for
domestic violence but could not determine the primary aggressor. No charges would
have been filed with respect to Dedra being a victim.
        {¶ 14} Upon cross-examination, the officer admitted he did not conduct a
follow-up interview with the applicant, but another officer went to the hospital.
Whereupon, the testimony of Officer Reffitt was concluded and the state rested its case.
        {¶ 15} In conclusion, the applicant asserts an ongoing violent relationship
between Kenneth and Dedra has been established.             Based upon the applicant’s
observation of the history of domestic violence between these individuals, the applicant
acted in good faith based upon the belief that his brother would assault Dedra.
Accordingly he was a victim of criminally injurious conduct pursuant to R.C.
2743.51(L)(2).
        {¶ 16} The Attorney General contended that the evidence discloses that there
were two separate incidents which occurred on April 25, 2009. The Attorney General
urged this panel to follow the holding in In re Dunlap, V84-37393jud (1-12-87), that the
applicant had an obligation to leave the premises when ordered to do so by the resident
and to contact the police to handle the matter, rather than take the situation into his own
hands and risk injury. However, even if for argument’s sake one would agree with the
applicant’s version of the events, it was a mutual aggression situation and law
enforcement was unable to determine the primary aggressor. Furthermore, in reliance
of In re Dunlap, this panel should find the applicant engaged in substantial contributory
Case No. V2009-40897                        - 5 -                                   ORDER


misconduct and no award should be granted. A reduction of an award on the basis of
R.C. 2743.60(F) would not be appropriate. Whereupon, the hearing was concluded.
        {¶ 17} R.C. 2743.51(L)(2) states:
        “(L) ‘Victim’ means a person who suffers personal injury or death as a result of
        any of the following:
         “(2) The good faith effort of any person to prevent criminally injurious conduct.”
        {¶ 18} R.C. 2743.51(M) states:
        “(M) ‘Contributory misconduct’ means any conduct of the claimant or of the
        victim through whom the claimant claims an award of reparations that is
        unlawful or intentionally tortious and that, without regard to the conduct’s
        proximity in time or space to the criminally injurious conduct, has a causal
        relationship to the criminally injurious conduct that is the basis of the claim.”
        {¶ 19} R.C. 2743.60(F) in pertinent part states:
        “(F) In determining whether to make an award of reparations pursuant to this
        section, the attorney general or panel of commissioners shall consider whether
        there was contributory misconduct by the victim or the claimant. The attorney
        general, a panel of commissioners, or a judge of the court of claims shall
        reduce an award of reparations or deny a claim for an award of reparations to
        the extent it is determined to be reasonable because of the contributory
        misconduct of the claimant or the victim.”
        {¶ 20} 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,
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.


        {¶ 21} From review of the case file and upon full and careful consideration of
the testimony presented at the hearing, we find the applicant was a victim of criminally
injurious conduct pursuant to R.C. 2743.51(L)(2), however, he did engage in
Case No. V2009-40897                      - 6 -                                  ORDER


contributory misconduct as defined in R.C. 2743.51(M), but his award should be
reduced by 30 percent as provided in R.C. 2743.60(F).
        {¶ 22} We find based upon the testimony of the applicant and Vance Summers
that Kenneth and Dedra had a history of domestic violence. We further find that on
April 25, 2009, the applicant was acting in good faith based upon his belief that a strong
possibility existed that Dedra would become a victim of domestic violence without his
involvement. We find the testimony of the applicant outweighs the testimony of the
police officer, who was not present at the scene during the altercation and who based
his conclusions solely on the statements of Kenneth and Dedra, with respect to the
issue whether there was one or two confrontations on the night of April 25, 2009. We
find one continuous altercation occurred, and accordingly the holding in In re Dunlap is
not relevant to this case.   However, we find the applicant engaged in contributory
misconduct by refusing to leave the premises and further engaging in a physical
altercation when he had the opportunity to defuse the situation.        Nonetheless, his
interests in staying were for his perceived ability to protect Dedra, even though such
perception might have been misplaced. We also considered the seriousness of the
applicant’s injuries and the lack of injury sustained by his brother in reaching our
conclusion that any award granted to the applicant should be reduced by 30 percent.
Therefore, the December 7, 2009 decision of the Attorney General is reversed.
        IT IS THEREFORE ORDERED THAT
        {¶ 23} 1)   Applicant’s motion to file his brief instanter is GRANTED;


        {¶ 24} 2)   The December 7, 2009 decision of the Attorney General is
REVERSED and judgment is rendered in favor of the applicant. However, any award
of reparations should be reduced by 30 percent due to the applicant’s contributory
misconduct;
        {¶ 25} 3)   This claim is remanded to the Attorney General for total economic
loss calculation and decision in accordance with the 30 percent reduction;
Case No. V2009-40897                                           - 7 -                            ORDER


             {¶ 26} 4)          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;
             {¶ 27} 5)          Costs are assumed by the court of claims victims of crime fund.




                                                                 _______________________________________
                                                                 ELIZABETH LUPER SCHUSTER
                                                                 Presiding Commissioner



                                                                 _______________________________________
                                                                 GREGORY P. BARWELL
                                                                 Commissioner



                                                                 _______________________________________
                                                                 RANDI M. OSTRY
                                                                 Commissioner
ID #I:\VICTIMS\2009\40897\5-10-10 panel decision.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 6-25-2010
Jr. Vol. 2275, Pgs. 170-176
To S.C. Reporter 8-20-2010
