[Cite as In re Mercer, 2011-Ohio-7073.]


                                               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: MYKAYLA MERCER


MYKAYLA MERCER

            Applicant


 Case No. V2010-50469

Commissioners:
Susan G. Sheridan, Presiding
William L. Byers IV
E. Joel Wesp

ORDER OF A THREE-
COMMISSIONER PANEL

{¶1} On October 22, 2009, the applicant, Mykayla Mercer, filed a compensation
application as the result of injuries she sustained from a November 29, 2008 automobile
crash.    On February 12, 2010, the Attorney General issued a finding of fact and
decision denying the applicant’s claim pursuant to R.C. 2743.60(B)(1)(c). The Attorney
General’s investigation revealed that the applicant was a passenger in a vehicle driven
by a driver she knew or should have known was under the influence of alcohol at the
time of the crash.           On March 1, 2010, the applicant submitted a request for
reconsideration. On April 23, 2010, the Attorney General rendered a Final Decision
finding no reason to modify the initial decision. On May 12, 2010, the applicant filed a
notice of appeal from the April 23, 2010 Final Decision of the Attorney General. Hence,
a hearing was held before this panel of commissioners on July 20, 2010 at 11:55 A.M.
For hearing purposes only this case was consolidated with Case No. V2010-50027 In re
Shontee. Both claims involved the same automobile crash.
{¶2} The applicant, Mykayla Mercer, appeared with her attorney, Michael Falleur.
Attorney Kimberley Wells appeared on behalf of the applicant in Case No.
Case No. V2010-50469                      - 2 -                                  ORDER


V2010-50027, Marsha Crishon.         The state of Ohio was represented by Assistant
Attorney General Georgia Verlaney.
{¶3} The applicant contends that inasmuch as Mykayla Mercer requested to be let out
of the vehicle, accomplice liability pursuant to R.C. 2743.60(B) should not bar her claim.
{¶4} The Attorney General argues that based on the investigation conducted by the
Dayton Police Department, Mykayla Mercer knew or reasonably should have known
that Felicia Burg was under the influence when she entered the vehicle. Felicia Burg
was convicted of a violation of R.C. 2903.08(A)(1), aggravated vehicular assault as a
proximate result of violating R.C. 4511.19(A)(1)(a), operating a motor vehicle while
under the influence of alcohol, a drug of abuse, or a combination of both.
Consequently, this claim should be denied pursuant to R.C. 2743.60(B).
{¶5} The Attorney General called Officer Jason Ward of the Dayton Police Department
to testify. Based upon Officer Ward’s educational background and experience, and
without objection from either applicant, Officer Ward was qualified as an expert in
technical crash investigation.
{¶6} Officer Ward related that he investigated the crash scene on November 29, 2008.
His field investigation determined that the vehicle was traveling at 65 mph at the time of
the crash.    He then proceeded to Miami Valley Hospital where he interviewed
applicant, Mykayla Mercer.       He conducted the interview in the trauma room, and
although she was in pain, her answers to his questions were coherent.              Mercer
chronicled that prior to the crash she, Cicely Shontee, and Felicia Burg were at Leo’s
Bar drinking alcohol, and that while Felicia was driving, she was drinking Powerade
mixed with vodka. Mercer stated Ms. Burg was operating the vehicle in a reckless
manner, talking on her cell phone, and smoking. The officer allowed both the applicant
and her mother the opportunity to review the witness statement, which they did making
no corrections or comments. Finally, Officer Ward described the effects alcohol has on
{¶7} a driver: impaired vision and judgment, increased risk taking, and diminished
motor skills. Officer Ward noted Felicia Burg’s blood alcohol level of .23, almost three
Case No. V2010-50469                      - 3 -                                 ORDER


times the legal limit, confirmed she was operating her vehicle while drunk which resulted
in the subsequent crash.
{¶8} Upon cross-examination, the officer stated he was unaware of any medications the
hospital might have administered prior to his interview with the applicant. Furthermore,
he stated he had no way of knowing how the vehicle was being operated prior to the
crash. Officer Ward stated a person who wanted out of a vehicle they believed was
being operated in a reckless manner had only two options: ask the driver to stop or get
out when the vehicle was stopped.
{¶9} On redirect examination, Officer Ward testified he was not aware of the
significance of the Propel (Powerade) bottle until he questioned the applicant. He also
stated that the applicant never told him or Officer Jackson, who interviewed the
applicant while she was confined to a nursing home, that she had requested or
demanded that Felicia Burg let her leave the vehicle.
{¶10} On re-cross examination the officer admitted he had never asked the applicant if
she had wanted to exit the vehicle. Whereupon, the testimony of Officer Ward was
concluded.
{¶11} }Mykayla Mercer was called to testify.       She related that after working an
approximate fourteen-hour shift, she returned to an apartment that she shared with
Cicely Shontee. It was decided that they would go out that evening and be transported
by Cicely’s friend Felicia Burg, a person Mykayla had never met. They left for Leo’s
Bar and she recalled that Felicia was drinking a sports drink mixed with diluted vodka
while they were driving, but in her opinion had not drunk enough to get "buzzed." Once
they arrived at Leo’s she and Cicely went to the dance floor where they remained the
{¶12} rest of the evening, while Felicia remained at the bar with a gentleman friend.
She related she had one encounter with Felicia while in the bar and recalled Felicia was
drinking a tall dark drink she thought was either Jack Daniels, Jagermeister and coke,
or a Long Island Ice Tea. This contact lasted approximately ten minutes. Mykayla
stated that Leo’s was a "bootleg" bar, meaning it would stay open and serve drinks after
Case No. V2010-50469                        - 4 -                                  ORDER


the legal closing time, consequently she left the bar sometime after 2:30 A.M. She
testified that she realized that Ms. Burg was intoxicated prior to leaving the parking lot of
the bar, since Ms. Burg almost struck two individuals with her car. She asserts both
she and Cicely urged Felicia to stop and pullover, slow down, drive more carefully or let
Cicely drive. (It should be noted that Cicely did not have a driver’s license and was
found to be over the legal limit for alcohol consumption when examined at the coroner’s
office). Mykayla testified she did not remember Felicia driving on the highway or the
crash, but was fully aware that Felicia was intoxicated. Mykayla stated she could not
recall speaking to any police officers at the scene, at the hospital, or any time thereafter.
{¶13} Upon cross-examination, Mykayla Mercer admitted that neither she or Cicely
attempted to call anyone to ask for a ride from Leo’s. She stated as soon as Felicia
started the car, accelerated causing the tires to throw gravel, and almost hit two
pedestrians, she knew Felicia was intoxicated. However, she declared she and Cicely
had no choice but to ride with her since the buses had stopped running this late
(approximately 3:00 A.M.) and it was too far to walk back to Cicely’s apartment.
{¶14} Upon redirect examination, Mykayla stated she became concerned about
Felicia’s ability to drive when the car was moving in the parking lot.
{¶15} Upon questioning by a panel of commissioners, Mykayla revealed her mind set at
the time of the incident was to calm Felicia down and get home, not to exit the vehicle.
She stated she did not attempt to get out of the car. Whereupon, the testimony of
Mykayla Mercer was concluded.
{¶16} The applicant called Carmen Swider, Mykayla’s mother, to testify via telephone.
Ms. Swider related she was notified by the hospital that Mykayla had been involved in
an automobile accident. She stated due to the injuries, shock, and medications that
had been administered to Mykayla she was not herself.            She did recall that police
officers entered the room and questioned Mykayla.
{¶17} Upon cross-examination, Ms. Snider admitted she was present during the police
officer’s questioning of her daughter. While she questioned her daughter’s coherence
Case No. V2010-50469                        - 5 -                                ORDER


she conceded the officer put the questions and answers into written form and allowed
both Ms. Swider and Mykayla to review the written document.                Whereupon, the
testimony of Ms. Swider was concluded.
{¶18} In closing, the Attorney General asserts that this claim must be denied pursuant
to R.C. 2743.60(B). The applicant was put on notice prior to initially entering Felicia
Burg’s vehicle that she intended to drink. Applicant testified that Felicia was drinking
from a sports drink bottle mixed with diluted vodka on the way to Leo’s Bar. It is
certainly reasonable to assume that one who is drinking alcohol on the way to a bar will
continue to drink more upon arrival. The medical evidence reveals Felicia, Cicely,
and Mykayla were all intoxicated when they left Leo’s. However, the applicant provided
no testimony that there was any talk of taking a cab or finding alternative transportation
home. The only discussion apparently centered around who was in the best condition
to drive.   (It should be noted that only Felicia held a valid driver’s license and the
passengers were not licensed drivers).
{¶19} The reckless operation of the vehicle at the time of the crash was directly related
to the intoxication of the driver, as evidenced by the fact that Felicia Burg
{¶20} pleaded guilty to aggravated vehicular homicide, aggravated vehicular assault,
and two separate OVI charges, each count having an alcohol specification.
{¶21} Applicant’s argument that somehow she was kidnapped or forcefully detained by
the driver does not reconcile with the evidence. The applicant’s testimony revealed
that the passengers were more concerned with having Felicia operate the vehicle in a
more responsible manner to continue on to their destination at Waffle House, rather
than having Felicia pull over so they could get out.
{¶22} The Attorney General firmly believes that the facts presented in this case by the
police report, medical records, and testimony presented at the hearing show, by a
preponderance of the evidence, that the applicant voluntarily knowingly assumed the
risk when she rode with Felicia Burg and accordingly, the applicant’s claim should be
denied pursuant to R.C. 2743.60(B).
Case No. V2010-50469                        - 6 -                                ORDER


{¶23} In closing, the applicant urged the panel to follow the holding in In re Garza,
V2004-60610tc (11-2-04). In that case the victim, who was much younger than the
offending driver, accepted a ride which resulted in a fatal car crash. That panel, in
reversing the Final Decision of the Attorney General, found that the fact the decedent
was under the drinking age, was significantly younger than the offender, had met the
offender a relatively short time prior to the incident, that the offending driver’s blood
alcohol level was only slightly higher than the legal limit which may have prevented the
victim from being aware that the offender was intoxicated, and that the decedent had
just prior to the event exercised reasonable judgment by declining to accept a
motorcycle ride without a helmet, provided sufficient evidence to warrant an award of
reparations.
{¶24} The applicant also urged the panel to follow the reasoning of the Attorney
General’s Final Decision in In re Merrill-Payne issued October 13, 2005. In that case,
{¶25} the Attorney General reversed its initial finding of fact and decision denying an
award pursuant to R.C. 2743.60(B), when it was discovered that the passenger had
made repeated requests to be let out of the vehicle but the offending driver refused. In
a subsequent injury -causing crash the passenger’s claim was granted due to the
ignored requests of the victim.
{¶26} The applicant asserts any consent Mykayla Mercer had given to Felicia Burg to
ride in her vehicle was withdrawn once Burg began shaking the steering wheel,
intentionally hitting curbs, and speeding.          Once her consent was withdrawn the
disqualifying factors pursuant to R.C. 2743.60(B) should not apply. Accordingly, this
panel should reverse the Final Decision of the Attorney General and grant an award in
favor of the applicant.
{¶27} R.C. 2743.60(B)(1)(a), (b), and (c) state:
          a.          "(B)(1) The attorney general, a panel of commissioners, or a judge
               of the court of claims shall not make or order an award of reparations to a
               claimant if any of the following apply:
Case No. V2010-50469                       - 7 -                                  ORDER


         b.          "(a) The claimant is the offender or an accomplice of the offender
              who committed the criminally injurious conduct, or the award would
              unjustly benefit the offender or accomplice.
         c.          "(b) Except as provided in division (B)(2) of this section, both of the
              following apply:
         d. "(i) The victim was a passenger in a motor vehicle and knew or reasonably
              should have known that the driver was under the influence of alcohol, a
              drug of abuse, or both.
         e.          "(ii) The claimant is seeking compensation for injuries proximately
              caused by the driver described in division (B)(1)(b)(i) of this section being
              under the influence of alcohol, a drug of abuse, or both.
         f. "(c) Both of the following apply:
         g.          "(i) The victim was under the influence of alcohol, a drug of abuse,
              or both and was a passenger in a motor vehicle and, if sober, should have
              reasonably known that the driver was under the influence of alcohol, a
              drug of abuse, or both.

         h.          "(ii) The claimant is seeking compensation for injuries proximately
              caused by the driver described in division (B)(1)(b)(i) of this section being
              under the influence of alcohol, a drug of abuse, or both."
{¶28} The Attorney General has the burden with respect to proof of [exclusionary
criteria R.C. 2743.60].    In re Williams, V77-0739jud (3-26-79); and In re Brown,
V78-3638jud (12-13-79).
{¶29} The use of the term "accomplice" in R.C. 2743.60(B) does not require the court to
analyze the conduct of an applicant using the Ohio Criminal Code definition of
complicity, under section R.C. 2923.03. If an applicant accepts a ride with a legally
impaired driver and when the preponderance of the evidence indicates that applicant
Case No. V2010-50469                        - 8 -                                    ORDER


has knowledge of the driver’s impaired condition, the applicant was an accomplice as
defined in R.C. 2743.60(B). In re Jan, V97-57941jud (3-15-99).
{¶30} "We believe the legislative intent of R.C. 2743.60(B) is to prevent individuals from
recovering from the fund who truly knew or had good reason to know of a driver’s
intoxication yet intentionally disregard such a risk.      R.C. 2743.60(B) cases are fact
specific and require a heightened level of scrutiny and analysis of those facts on a
case-by-case basis under the law. The premise of "R.C. 2743.60(B) is based upon a
{¶31} reasonable person standard, which ultimately poses the question of what would
a prudent person (one of ordinary care and skill) of the same age, intelligence, and
experience have done in the same or similar circumstances."                    In re Garza,
V2004-60610tc (10-21-04), 2004-Ohio-7266 ¶11, 12.
{¶32} Only the panel of commissioners and the judge of the court of claims can render
final judgments. The attorney general merely renders final appealable decisions. The
attorney general’s function is purely administrative in nature with respect to making an
{¶33} initial determination. The attorney general’s scope of authority is limited since
the attorney general is unable to afford applicants any hearing rights as due process
requires. In re Parkins, V2002-51168tc (1-16-03).
{¶34} 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.”
{¶35} 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.”
{¶36} 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
Case No. V2010-50469                       - 9 -                                 ORDER


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.
{¶37} From review of the case file and with full and careful consideration given to all the
testimony presented and the arguments expounded by the parties at the hearing, we
find the applicant’s claim should be denied pursuant to R.C. 2743.60(B)(1)(c)(i) & (ii).
Since counsel for both applicants requested Case Nos. V2010-50027 and V2010-50469
be consolidated for hearing purposes, we believe we may consider all testimony,
examination, and cross-examination offered at the hearing irrespective of which
applicant called the specific witness.
{¶38} We believe the applicant knew the driver was intoxicated prior to her peeling out
of the parking lot at Leo’s Bar.     The applicant testified that the driver immediately
accelerated her vehicle throwing up gravel in the parking lot, then almost struck two
pedestrians, prior to exiting the parking lot. The applicant testified it was at this point
when she realized that the driver was impaired. However, rather than demanding to
leave the vehicle she testified that she and Cicely Shontee tried to reason with the
driver, yelled at her, and attempted to "calm her down."          At no time during the
applicant’s testimony did she state that she demanded the driver to allow her to leave
the vehicle.
{¶39} The most salient portion of the applicant’s testimony occurred while being
questioned by a panel commissioner. When asked if she made any attempt to get out
of the vehicle by unlocking the rear passenger door or attempting to unlock it, the
applicant stated no. The applicant stated that at the time her desire was to calm the
driver down and get home.
{¶40} While we are cognizant of the fact that the applicant asserts she was intoxicated
at the time of the accident, a review of the question and answer session between her
and Officer Ward revealed that she knew the driver was drinking prior to the crash and
had been drinking while driving. Furthermore, she substantiated her impression of the
evening with her testimony.
Case No. V2010-50469                                              - 10 -                                         ORDER


 {¶41} Therefore, we find the Attorney General satisfied his burden of proof with respect
to R.C. 2743.60(B). Accordingly, the April 23, 2010 decision of the Attorney General is
affirmed.
 {¶42} IT IS THEREFORE ORDERED THAT
 {¶43} Applicant’s motion to permit telephone testimony by Carmen Swider is
GRANTED;
 {¶44} The April 23, 2010 decision of the Attorney General is AFFIRMED;
 {¶45} This claim is DENIED and judgment is rendered in favor of the state of Ohio;
 {¶46} Costs are assumed by the court of claims victims of crime fund.




                                                                       _______________________________________
                                                                       SUSAN G. SHERIDAN
                                                                       Presiding Commissioner



                                                                       _______________________________________
                                                                       WILLIAM L. BYERS IV
                                                                       Commissioner



                                                                       _______________________________________
                                                                       E. JOEL WESP
                                                                       Commissioner

ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2011\August 2011 part II\V2010-50469 Mercer.wpd\DRB-tad
        A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Montgomery County Prosecuting Attorney and to:
Filed 8/25/11
Jr. Vol. 2280, Pgs. 88-99
Sent to S.C. Reporter 10-12-12
