[Cite as In re Seawright, 2011-Ohio-4319.]


                                              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: RICHARD SEAWRIGHT


RICHARD SEAWRIGHT

            Applicant


 Case No. V2010-50736

Commissioners:
Karl C. Kerschner
Elizabeth Luper Schuster

ORDER OF A TWO-
COMMISSIONER PANEL

          {1}On December 10, 2009, the applicant, Richard Seawright, filed a
compensation application as the result of a shooting incident which occurred on August
16, 2009.      On March 26, 2010, the Attorney General issued a finding of fact and
decision denying the applicant’s claim pursuant to R.C. 2743.60(C), failure to fully
cooperate with law enforcement. On April 6, 2010, the applicant submitted a request
for reconsideration. On July 26, 2010, the Attorney General rendered a Final Decision
finding no reason to modify the initial decision. On August 20, 2010, the applicant filed
a notice of appeal from the July 26, 2010 Final Decision of the Attorney General.
Hence, a hearing was held before commissioners Ostry, Kerschner, and Schuster on
November 18, 2010 at 11:00 A.M.
          {2}The applicant appeared at the hearing while Assistant Attorney General
Heidi James appeared on behalf of the state of Ohio.
          {3}The applicant stated that he did cooperate with law enforcement and his
claim should be granted.
          {4}The Attorney General asserts the efforts of law enforcement were substantial
and diligent.      However, at no time did the applicant comply with the reasonable
Case No. V2010-50736                       - 2 -                                ORDER


requests of law enforcement. The Attorney General asserts that when the applicant did
contact police his concern was for the return of his weapon, which had been taken by
police at the scene of the incident, and not the investigation of the criminal conduct
surrounding his injuries.    Accordingly, the Attorney General’s decision should be
affirmed.
        {5}The applicant called his father, Richard Black, to testify. Mr. Black related
that he picked the applicant up from the hospital, at which time the applicant was
instructed by his doctor to stay in bed for the next four months. The only time the
applicant was allowed to leave his residence was for medical appointments. Mr. Black
accompanied the applicant to those appointments since the applicant was not allowed
to drive. The applicant had an operation after four months to remove one of the six
bullets which struck him at the time of the criminally injurious conduct.
        {6}Mr. Black revealed that the applicant was very concerned about the recovery
of his duty weapon, which was believed to be in the possession of the Cleveland Police
Department. Mr. Black stated he accompanied his son as he visited various precincts
throughout the Cleveland metropolitan area to recover the weapon, but to no avail.
With respect to the police report, Mr. Black confirmed that the applicant informed
Detective Bilko of the Cleveland Police Department that the initial police report was
incorrect, offered correct information over the phone, and identified the offenders.
However, Detective Bilko stated this information could not be taken over the phone, and
the applicant was instructed to come to the police department in person, although at the
time his doctor had ordered strict bed rest.
        {7}Upon cross-examination, Mr. Black admitted the first time he took the
applicant to the precinct office, he tried to obtain his weapon and did not make a report
relating to the criminally injurious conduct. Whereupon, the witness’ testimony was
concluded.
        {8}The applicant testified he has been employed by Cuyahoga County
Protective Services for the past 13 years.         He related exactly how the criminally
Case No. V2010-50736                         - 3 -                                 ORDER


injurious conduct occurred. While at the hospital he gave the officer a description of
what happened, but he stated a review of the initial police report did not accurately
reflect the incident or the property in his vehicle at the time of the incident.
         {9}The applicant related he contacted Detective Bilko via telephone and
informed her of the omissions and discrepancies contained in the report. However, he
was informed he needed to come to the station to fill out a report and to review mug
shots, even though he informed the detective he was unable to do so due to his medical
condition. Furthermore, he stated he cooperated and provided Detective Bilko with the
names of the offenders. The applicant asserts he did cooperate but the police refused
to come to his house and subsequently the case was closed.
         {10}Upon cross-examination, the applicant related that he recognized the
offenders and later provided the police with this information. The applicant stated he
spoke to an officer at the scene and at the hospital and provided this officer with all the
information surrounding the incident. Furthermore, he apprised the officer that his duty
weapon was contained in the trunk of his vehicle and was assured that the weapon
would be placed in safe keeping. The applicant stated he spoke to Detective Bilko on
the phone one or two months after the incident, told her about omissions and
discrepancies in the initial report, and informed her who the offenders were. He related
that the detective stated he should come to the station to view a photo lineup. The
applicant stated he was unable to do so since he was on bed rest and requested she
come to his residence so he could view the photo lineup.                The detective never
complied with this request.      The applicant stated he never viewed a photo lineup
because by the time he was well enough to do so the case was closed. Whereupon,
the applicant’s testimony was concluded.
         {11}The Attorney General called Detective Lynn Bilko to testify via telephone.
Detective Bilko was assigned to the third district of the detective bureau of the
Cleveland Police Department. Detective Bilko stated the first contact she made with
the applicant was on September 18, 2009, when she left a voice mail message at his
Case No. V2010-50736                       - 4 -                                  ORDER


residence. On September 21, 2009, she sent the applicant a certified letter requesting
he contact her. She called him again on September 27, 2009 and finally spoke with
him on September 28, 2009. She asserts she spoke with him again on September 30,
2009 and finally spoke with him on October 14, 2009 to set up an appointment so he
could view a photo lineup.
        {12}The detective related on September 28, 2009, the applicant provided her
with a statement over the phone as to what happened at the time of the criminally
injurious conduct, however, she informed him to come in to the department so a report
could be typed. She stated he was upset about the inaccuracies contained in the initial
report. She believes his biggest concern was about the location of his weapon. The
detective related with respect to the weapon she believed it was being held due to
pending marijuana possession and domestic violence charges. The detective stated
that the case would not continue until the applicant came to the office to view the photo
lineup and have a report typed. Although the applicant requested the detective come
to his residence she refused.      The case has not gone forward based upon the
applicant’s failure to go to the police office.    Detective Bilko stated this applicant’s
failure to cooperate substantially impaired or impeded the investigation of this matter.
        {13}Upon cross-examination, Detective Bilko admitted that the applicant
provided a detailed description of what happened on the day of the incident via
telephone.   The officer also admitted that the applicant indicated he was taking
medications for the injuries he sustained and wished to correct the initial police report
over the phone. Furthermore, the detective acknowledged that the applicant told her
he was unable to walk and could not leave his residence.            Finally, the detective
conceded that the applicant provided her with names of the suspected offenders.
        {14}Upon questioning by the panel of commissioners, Detective Bilko, after
reviewing the initial police report, could find no instances where the applicant was
uncooperative with law enforcement either at the crime scene or at the hospital. She
also admitted that when the applicant appeared at the police station some four months
Case No. V2010-50736                       - 5 -                                ORDER


after the incident it was possible that someone would have told him the case was
closed. However, Detective Bilko insisted that the applicant should have spoken to her
about the status of his case. Detective Bilko stated the applicant was cooperative with
respect to giving the names of the alleged offenders, but he did not come into the office
to give a formal statement or to view the photo lineup.
        {15}Although Detective Bilko acknowledged that the applicant requested to
view the photo lineup at home due to his medical condition, she stated photo lineups
were to be conducted only at the office.           She viewed the applicant as being
uncooperative because he never appeared in person at the police station.
        {16}On re-direct examination by the Attorney General, Detective Bilko
emphasized that no criminal investigation could be conducted unless the applicant
appeared in person at the police station to review a photo lineup. Furthermore, the
applicant was more focused on the whereabouts of his gun and mistakes in the initial
police report than in helping in the investigation of the criminal conduct. Whereupon,
the testimony of Detective Bilko was concluded.
        {17}In closing, the applicant stated he provided the police with information
surrounding the incident, but the police failed to follow through. He asserts he was
cooperative and this claim should be granted. {18}The Attorney General asserts the
applicant was uncooperative because neither a photo lineup was conducted nor a
statement was made at the police station which was the Cleveland Police Department’s
protocol.   Accordingly, the Attorney General’s Final Decision should be affirmed.
Whereupon, the hearing was concluded.
        {19}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.”
Case No. V2010-50736                        - 6 -                                    ORDER


         {20}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).
         {21}“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.
         {22}On April 6, 2011, the court issued a notice informing the parties that
pursuant to Rule 1.12(b) of the Rules of Professional Conduct, Commissioner Randi M.
Ostry recused herself from the case at bar and requested the parties file written
notification by May 6, 2011 as to whether they want the motion decided by the two
remaining panel commissioners who sat at the hearing; or they wanted a randomly
selected third commissioner to review the case file and hearing and reach a decision
together with the two sitting commissioners; or they want a rehearing of the matter.
         {23}On April 20, 2011 and April 26, 2011, the applicant and the Attorney
General respectively filed notices wishing to proceed with this matter based upon the
decision of the two remaining panel of commissioners.
         {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.”
         {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.”
Case No. V2010-50736                       - 7 -                                 ORDER


        {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 find the
applicant fully cooperated with law enforcement and accordingly, the Attorney General’s
decision shall be reversed.
        {28}We find the applicant’s actions of describing the events surrounding the
shooting incident to the officer at the scene of the crime and at the hospital, speaking to
the detective in charge of the case on three separate occasions via telephone, informing
the detective of the names of the suspected assailants; providing the detective with the
name of the witness to the shooting; and requesting the detective come to his
residence, due to his medical condition, to take a statement and view the photo lineup
evidences a desire to cooperate. We find no evidence or testimony was submitted to
rebut the credible testimony presented by the applicant.         While the applicant did
express his displeasure with discrepancies and omissions contained in the police report
and was concerned about the recovery of his duty weapon, we do not find these
collateral issues constitute either a failure to cooperate or an impairment of the criminal
investigation. Finally, considering the fact that the applicant was a gunshot victim we
do not believe his request that the police come to his residence to take a report or view
a photo lineup to be unreasonable.
        {29}Consequently, the July 26, 2010 decision of the Attorney General is
reversed.
        IT IS THEREFORE ORDERED THAT
        {30}1) The July 26, 2010 decision of the Attorney General is REVERSED and
judgment is rendered in favor of the applicant;
Case No. V2010-50736                                          - 8 -                            ORDER


            {31}2) This claim is remanded to the Attorney General for total economic loss
calculation and decision;
            {32}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;
            {33}4) Costs are assumed by the court of claims victims of crime fund.




                                                                _______________________________________
                                                                KARL C. KERSCHNER
                                                                Commissioner



                                                                _______________________________________
                                                                ELIZABETH LUPER SCHUSTER
                                                                Commissioner

ID #I:\VICTIMS\2010\50736\V2010-50736 Seawright.wpd\DRB-tad
        A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Cuyahoga County Prosecuting Attorney and to:


Filed 5-16-11
Jr. Vol. 2278, Pgs. 163-171
Sent to S.C. Reporter 8-26-11
