Opinion
No. V87-73269.
Decided July 20, 1989.
Michael D. Falleur, for the applicant.
Anthony J. Celebrezze, Jr., Attorney General, for the state.
On the night of July 3, 1986, Sherry Rea, applicant herein, was injured when she attended the public fireworks display and celebration held in downtown Columbus, Ohio. Following the festivities, as the massive crowds began to disperse, a group of unidentified youths began to throw bottles into the crowds. One of the bottles struck the applicant in the forehead, resulting in injury to her. It is asserted within the affidavits that a physician and a nurse emerged from the crowd to begin treatment of the wounds. Another passer-by called an ambulance which arrived within ten minutes and transported applicant to nearby Grant Hospital for treatment. It is also asserted in both the affidavits and the applicant's response that police were called to the scene and, along with affiant, David Allen, began to chase the offenders. The offenders ultimately escaped and were never identified. David Allen returned to the injured applicant; however, the police officer resumed the performance of his crowd control responsibilities and did not return.
Three days later, applicant discovered that no written report of the incident had ever been filed. She thereupon consulted with legal counsel, who assured her that he would file the necessary report. This he failed to do.
Following the filing of the Victims of Crime reparations application, the Attorney General, pursuant to his statutory responsibilities, investigated the various allegations within the application. It was discovered that no report of the incident was on file with local law enforcement officials. By his finding of fact and recommendation, he asserted that applicant had failed to comply with the statutory prerequisites for qualification as a claimant. Specifically, it was found that she failed to report the incident of criminally injurious conduct to local police within seventy-two hours as required by R.C. 2743.60(A). He consequently recommended that the claim be denied.
Applicant filed a written response to the Attorney General's recommendation. In her response, it was asserted that the police officer who had responded to the scene of the criminally injurious conduct was informed of all the necessary facts. She included the joint affidavits of David C. Allen and Heidi M. Allen who averred all of the above facts. She also asserted that she had failed to file a later report because her legal counsel had assured her that he would handle the matter.
By his opinion, the single commissioner determined that the affidavits and statements were insufficient, characterizing them as "self serving." He found that applicant had failed to comply with the reporting requirement. Also, he determined that reliance upon an attorney at law to file the police report did not amount to more than mere reliance upon a volunteer which "constitutes negligence on the part of the victim on whom befalls the duty to report the criminally injurious conduct." He therefore denied the claim for reparations.
Applicant then filed an appeal of the matter to the three-commissioner panel. At this stage, an oral hearing upon the merits of the claim was held. Applicant appeared and testified to all of the above facts, adding only that she personally never explained the matter to the responding police officer due to her injury. The affidavits were also admitted. The three-commissioner panel adopted the opinion of the single commissioner in its entirety. The panel likewise concluded that the applicant failed to prove that a police report had been made.
The cause is before this court pursuant to an appeal as of right.
The analysis of the within appeal must begin with a review of the applicable law. R.C. 2743.60(A) states, in pertinent part, as follows:
"An award of reparations shall not be made to a claimant if the criminally injurious conduct upon which he bases his claim was not reported to a law enforcement officer or agency within seventy-two hours after the occurrence of the conduct, unless it is determined that good cause existed for the failure to report the conduct within the seventy-two hour period."
It is conceded by the parties that no written report of the incident was created by the local police department. Applicant asserts that her decision to rely upon her attorney to file a report, after discovering that no written report as yet existed, constitutes "good cause" within the meaning of the above statute for failure to later file such written report. Addressing the issue of "good cause," the opinion below concluded, as previously mentioned, that such reliance amounted to little more than negligent reliance upon a volunteer. While, for obvious reasons, this may be asserted of a decision to rely upon the services of a stranger, it cannot, under these circumstances, be concluded that reliance upon retained counsel is negligence, and that as a matter of law. The attorney at law is legally charged with and licensed for, the very task of providing proper and timely representation. One who relies thereon has hardly been negligent, but, rather, has demonstrated a degree of prudence.
As a matter of precedence, it has been determined that reliance upon school authorities to file a report, where the event occurred on school property, or reliance upon hospital staff representations that a report has been filed would tend to provide the necessary foundation for a finding of good cause. The reasonableness of the reliance, under the reasonable man standard, see In re Smith (July 10, 1978), Ct. of Claims No. V77-0741tc, unreported, is viewed in light of whether the relied-upon person(s) would be perceived as having an independent duty to make such report. These were the precise circumstances in the cases In re Portis (Aug. 11, 1977), Ct. of Claims No. V77-0286sc, unreported, expressly relied upon below, and In re Martin (May 21, 1981), Ct. of Claims No. V79-4008sc, unreported.
This is not to say that reliance upon an attorney satisfies the requirement of filing a police report; it does not. However, it does not follow that reliance upon retained counsel may not establish a basis for a showing of good cause under R.C. 2743.60(A). Such determination need not be made at this time, for, as pointed out in the opinion below, R.C. 2743.60(A) allows considerations of good cause to be applied when the focus is upon "the failure to report the conduct within the seventy-two hour period." (Emphasis added.) No good-cause analysis may be undertaken when there has been an absolute failure to file a police report.
In considering the question of whether a report was made, it must be first determined what kind of report is contemplated by the statutory requirement. R.C. 2743.60(A) requires that a claim be denied if the criminally injurious conduct "was not reported to a law enforcement officer or agency * * *." The Attorney General filed investigator's report indicated that no report of the incident had been filed with the Columbus Police Department. This conclusion was based upon the fact that no report was found to exist in the police files. Furthermore, the Attorney General's recommendation that the claim be denied was clearly premised upon the fact that no report was on file. In his written argument below, the Attorney General asserted that the police must "take" a report in order to satisfy the statute. During oral argument before the panel, he continuously maintained his position that only a written report could satisfy the statute, and that anything else was so unverifiable as to create problems of administration for the Victims of Crime Program.
The word "report" was interpreted by In re Minadeo (Oct. 31, 1980), Ct. of Claims No. V79-3435jud, unreported, as follows:
"A report may be oral or written by the victim/claimant or by any person having reliable and probative knowledge. If written it must be filed with the law enforcement agency within whose jurisdiction the criminal act occurred. If oral it must be stated to an officer or employee of the proper agency whose duty it is to receive statements and to record them in accordance with the operational guide lines [ sic] of the agency." (Emphasis added.)
It has also been explained that:
"It should be abundantly clear that the foregoing language [of R.C. 2743.60(A)] requires only that the criminally injurious conduct be reported to a law enforcement officer or agency within seventy-two hours. It does not require that the Applicant, or any other person, insist that the law enforcement officer or agency prepare and file a formal police report." (Emphasis sic.) In re Ellis (June 26, 1981), Ct. of Claims No. V80-31102sc, unreported. See, also, e.g., In re Tuggle (Dec. 29, 1981), Ct. of Claims No. V79-4190sc, unreported; In re McQueen (Nov. 15, 1984), Ct. of Claims No. V84-33681sc, unreported; In re Marcum (Sept. 6, 1985), Ct. of Claims No. V85-54054sc, unreported.
As pointed out by counsel for applicant, the statute says nothing whatsoever about the "taking" of a report, but only the "reporting * * * of the conduct." In the statute, the word "report" is used as a verb, as in "to report." It is plainly not used as a noun, which would signify "the report." As asserted in applicant's argument below, "[t]he decision to prepare a written report lies with the law enforcement member, NOT THE REPORTING CITIZEN!" (Emphasis sic.) See, e.g., In re Krumme (June 7, 1977), Ct. of Claims No. V77-0300sc, unreported, and In re Marcum, supra. The conclusions in the above cases being most compelling, it is consequently undeniable that a spoken report to a police officer at the scene of a crime fully satisfies the requirement of reporting "to a law enforcement officer or agency * * *."
The issue placed directly before the three-commissioner panel was whether applicant had shown that the matter had been reported to police. Upon this issue, several questions must be resolved, all of which involve the characterizations of the evidence adduced below in support of applicant's claim.
The opinion below, expressly adopted by the panel, asserts that: "[s]elf-serving affidavits cannot stand alone, but must be supported by probative, corroborative facts, or must not be inconsistent with or contradictory to facts established in the record. In re Rios (1983), 8 Ohio Misc.2d 4 [8 OBR 63, 455 N.E.2d 1374]." Having so stated, the opinion makes no further reference to the affidavits submitted in evidence or to the statements and testimony of appellant. It is not explained how such standard applies, nor whether the specific affidavits submitted contain meaningful evidence under such standard.
The Attorney General's arguments, both before the panel as well as upon appeal, assert that the submitted affidavits are self-serving, "not because it was made by the applicant, * * * but because it is a statement ( i.e. [ sic] a hearsay declaration) by a party to prove an essential element of the case. The element here, of course, is the statute's requirement."
An analysis of the term "self-serving" reveals that it is utilized as a term of art to apply to statements which, by definition, are hearsay. As used in this way, self-serving statements are understood as those made by the party to a proceeding which are asserted to prove an essential point in his case. By hearsay, it is meant that the statement at issue was made out of court and thus suffers from the dangers inherent in all such statements, viz., that the finder of fact cannot observe the declarant's demeanor when the statement is made and the declarant is not then tested by cross-examination. As a general rule, such statements are made after the fact of the event at issue and would, if allowed in, characterize the event so as to benefit the proponent of the statement. Hence, a number of interrelated rules exist to exclude, or in limited circumstances, admit this species of hearsay declarations as evidence at trial. See Evid.R. 801(D)(1)(b), (D)(2), 804(B)(3) and 613.
The Ohio Rules of Evidence do not, of course, obtain in the evaluations and hearings utilized in Victims of Crime reparations claims. Consequently, hearsay statements, even of the self-serving variety, are not excluded from consideration. Instead, such statements are evaluated for trustworthiness and given weight accordingly. In re Rios, supra; In re Bunch (July 14, 1986), Ct. of Claims No. V85-51284sc, unreported.
As to the evidence presented by applicant in support of her claim below, the rules excluding self-serving statements, presuming, arguendo, their applicability, would have no application when the declarant is in court, or otherwise subject to cross-examination while under oath, and the subjects of the testimony are events observed by the witness. Accordingly, applicant's testimony before the three-commissioner panel hearing could hardly be construed as hearsay or self-serving; this is particularly true of her observations that police responded to her injury, approached her and observed her condition of injury and began to chase the suspected perpetrators.
Admittedly, applicant was unable to explain that a crime had been committed upon her. However, at that point, it would hardly be necessary for one injured and bleeding, lying in the very middle of the street, to herself explain that she was the victim of a crime. That the full circumstances of the crime were conveyed to police is demonstrated by the instant reactions, observed and testified to by applicant, of pursuing the alleged offenders. This is strong evidence that someone reported this instance of criminally injurious conduct to the police officer who responded to the situation.
In considering the affidavits at issue, it should be first pointed out that the commissioners under the Victims of Crime Program typically and necessarily rely upon affidavits in evaluating the substantive merits of reparations applications. For example, claims involving questions of contributory misconduct, so numerous as not to require citation, typically present affidavits from any number of sources, each presenting their own version of the events giving rise to the victim's injury. Such affidavits provide considerable information upon which claim determinations are made.
Reliance upon the standard set forth by In re Rios, supra, is often repeated, and, in the present circumstances, quite erroneously applied. For affidavits, once admitted into evidence, are to be considered and weighed in the same manner as all other evidence. The Rios standard is applicable, at most, only to the narrow question of the believability of the testimony offered in that case. Therein, the affiant actually testified at the three-commissioner panel hearing, thus rendering of no import any argument that the affidavit was hearsay, i.e., self-serving. The further use of the term "self-serving" in In re Rios was not to be understood in the technical evidentiary sense, but along with terms such as "lack of persuasiveness," did no more than characterize the believability of such testimony as was offered.
This court is unaware of any law which requires, as a prerequisite for admissibility or as the single measure of its weight, that an affidavit be supported by "competent corroborative testimony, documents or other probative facts," or that it must be consistent with other parts of the record. Rios, supra, 8 Ohio Misc.2d at 4 and 6, 8 OBR at 63 and 65, 455 N.E.2d at 1374 and 1376. In fact, affidavits are to be admitted and evaluated in the same way, and their substantive value tested by the same standards, as all other evidence.
As to the Attorney General's analysis of the affidavits, set forth above, it would appear that it is attended by considerable internal inconsistency. The implied distinction between a party and the applicant in a Victims of Crime claim has no basis. Obviously, the applicant is the "party" in a Victims of Crime reparations claim. Just as obviously, the affiants are not parties to the claim. Moreover, although it is not denied that the affiants are friends of the applicant, there has been no showing of any financial or other tangible legal interest which affiant's might have in the outcome of the claim determination.
The assertion that affiants' statements are not reliable because they are friends of the applicant and therefore not disinterested requires the conclusion that all affidavits of friends and family members are likewise to be distrusted. While certainly any proven relationship to the victim may be considered, an affidavit's value is not necessarily nullified merely because a friend or family member swore to the statement. After all, it is very often the situation that friends, neighbors, and or family members will be present with a victim when an injury is criminally inflicted upon him. They often provide the basis of the police reports, as well as testimony upon which the offender is convicted. Moreover, as previously mentioned, such affidavits are customarily relied upon by the single commissioner and panel to determine any number of factual evaluations necessary for a claim determination. See, e.g., In re Grow (1983), 7 Ohio Misc.2d 26, 7 OBR 175, 454 N.E.2d 618; In re Giddens (Dec. 31, 1981), Ct. of Claims No. V83-61380tc, unreported.
There are a number of cases on point which provide additional guidance as to the usefulness of affidavits in situations like the present. In In re Tuggle (Dec. 29, 1981), Ct. of Claims No. V79-4190sc, unreported, the Attorney General was unable to discover a written police report and so recommended that the claim be denied upon the same grounds asserted herein. By way of response, the applicant submitted his own affidavit indicating that he had personally been interviewed by a police officer while in the emergency room of the hospital. The single commissioner, far from disregarding the affidavit, admitted it and, in conjunction with a hospital admission report, granted the claim.
Similar reliance upon an affidavit was made in In re Ellis (June 26, 1981), Ct. of Claims No. V80-31102sc, unreported. The affidavit there was that of a friend who was present when the applicant was interviewed by police on the way to the hospital. Having found no written report, the Attorney General recommended a denial of the claim upon that basis. His investigation, however, indirectly produced evidence which was considered with the affidavit submitted. Upon the basis of the affidavit, in light of other supporting evidence, the claim was allowed.
A review of the claim file and the opinions below indicates that the Attorney General did not present affirmative evidence to contradict the evidence presented by applicant. Thus, the real question presented is one of the sufficiency of the evidence adduced. Ordinarily, a reviewing court will not reverse a ruling upon factual issues unless the evaluation below was clearly erroneous. This is even more so where the determinations are upon matters of credibility of witnesses and the particular weight given to evidence. In the present case, however, the opinion of the single commissioner, adopted in totality by the three-commissioner panel, indicates that the available evidence was evaluated under the wrong legal standards. The asserted bases for discounting the above evidence are the erroneous views that R.C. 2743.60(A) requires a written report, and that the affidavits produced and the testimony of applicant were self-serving. The affidavits of David and Heidi Allen are the repositories of useful, probative information which provide a firm basis upon which to conclude that a report was orally given to the police on the evening of the criminally injurious conduct. Further, the affidavits corroborated the direct testimony of applicant. There was no other evidence upon the issue. Accordingly, it is concluded that the criminally injurious conduct was reported to police as required by R.C. 2743.60(A). The decision of the three-commissioner panel is therefore reversed and the claim is remanded for a determination of unreimbursed losses which the applicant may have incurred.
Order
Having considered the record and in view of the opinion rendered concurrently herewith,
IT IS ORDERED THAT:
1. The February 24, 1989 order of the panel of three commissioners is hereby reversed;
2. The claim is remanded to a panel of commissioners and referred to the Attorney General for further investigation and a new recommendation as to the applicant's economic loss, if any;
3. The new finding of fact and recommendation shall be filed before a panel of commissioners on or before August 21, 1989 and shall be captioned "Finding of Fact and Recommendation to a Three-Commissioner Panel";
4. The applicant is afforded an opportunity to respond to the new finding of fact and recommendation within twenty-one days after it is filed by the Attorney General;
5. Costs are to be assumed by the reparations fund.
So ordered.