Opinion
2023-00258VI
10-04-2023
IN RE: JARED R. THORNTON, SR DONNA K. ROSS Applicant
Sent to S.C. Reporter 2/27/24
DECISION OF THE MAGISTRATE
HOLLY TRUE SHAVER, Magistrate
{¶1} On August 8, 2023, a hearing was held on Donna K. Ross' ("applicant") appeal of the Attorney General's ("the AG") March 6, 2023 final decision denying her claim. The AG denied the claim because it determined that there was no criminally injurious conduct when applicant's son, Jared R. Thornton, Sr. ("decedent"), died as a result of an accidental drug overdose.
{¶2} In her August 17, 2022 application, applicant stated that decedent died as a result of ingesting heroin that was laced with fentanyl on July 20, 2020. Applicant sought funeral and burial expenses. This application was denied by the AG in its December 13, 2022 finding of fact and decision. On January 6, 2023, applicant filed a request for reconsideration, stating that the individuals who sold decedent the drugs pled guilty to felony counts of corrupting another with drugs. Applicant asserted that the felony convictions are conclusive evidence of criminally injurious conduct. On March 6, 2023, the AG issued a final decision, wherein it found no reason to modify its finding of fact and decision, because the Medina County Coroner's Office determined the cause of death was acute fentanyl intoxication and the manner of death was accidental; thus, applicant filed this appeal.
{¶3} At the hearing, attorney William Ross represented applicant and Assistant AG Melissa Montgomery represented the state. Neither applicant nor the state presented any witnesses.
{¶4} First, attorney for applicant clarified that decedent's death was strictly caused by a fentanyl overdose. Next, attorney for applicant reiterated the argument that the guilty plea of the dealers to corrupting another with drugs is conclusive evidence that criminally injurious conduct occurred and that the act of selling drugs is foul play. Finally, attorney for applicant argued that the line of cases cited in the AG's brief -including In re Stanley, Ct. of Cl. No. V2007-90340tc, 2007-Ohio-4700, affd jud (Dec. 12, 2007), In re O'Neill, Ct. of Cl. No. 2015-00975-VI (Oct. 26, 2016), affd jud (Nov. 29, 2016), In re Camp, Ct. of Cl. No. 2018-01054VI, 2018-Ohio-5481, affd jud (Dec. 7, 2018), and In re Pratt, Ct. of Cl. No. 2023-00203VI, 2023-Ohio-3348 affd jud 2023-Ohio-3487-does not stand for the proposition that the AG argues it does.
{¶5} As to Stanley, attorney for applicant argued that the decision did not create a new disqualification (that a voluntary ingestion of illegal drugs cannot be criminally injurious conduct) but that the applicant was disqualified due to a provision in R.C. 2743.60(E) that no longer applies. Attorney for applicant stated that the voluntary ingestion language was just a statement of fact, not a conclusion of law.
{¶6} Attorney for applicant argued that O'Neill is not applicable in drug overdose cases because the holding was focused on residency, not the drugs or the death.
{¶7} Attorney for applicant stated that the facts in Camp are distinguished from the facts in this case because in Camp there was no arrest or conviction, and here there were arrests and convictions.
{¶8} Attorney for applicant pointed out that Stanley, O'Neill, and Camp, were all decided prior to the changes made to R.C. 2743 in 2022. Attorney for applicant asserted that the changes made to R.C. 2743.60(E) were intended to discourage blaming the victim. Specifically, attorney for applicant stated that the change in the statute made it so that neither this court nor the AG can consider contributory misconduct when a victim dies. Attorney for applicant asserted that Stanley, O'Neill, and Camp, were merely applying one of the R.C. 2743.60(E) disqualifying factors that no longer exist and are thus not applicable in this case.
{¶9} In comparing Pratt with this case, attorney for applicant stated that the fact that the applicants in Pratt did not have an attorney caused the case to be decided incorrectly.
{¶10} Finally, attorney for applicant requested that the court grant the claim because the law has changed since Stanley, O'Neill, and Camp were decided.
{¶11} The AG conceded that decedent died solely as a result of an accidental fentanyl overdose. The AG argued that a voluntary drug overdose cannot be criminally injurious conduct and clarified that the denial in this claim was not based on a disqualification that has been eliminated but was based on the AG's determination that there was no criminally injurious conduct that resulted in decedent's death. The AG asserted that funeral expenses cannot be awarded unless there was a homicide. The AG determined that the chain of causation between decedent's death and the sale of drugs was broken when decedent voluntarily ingested the drugs, whether or not he knew that the drugs contained fentanyl.
{¶12} In closing, attorney for applicant argued that there was a direct connection between the sale of drugs and decedent's death as determined by the criminal court. Finally, attorney for applicant argued that there is nothing in the statutory language that states that voluntarily consuming drugs disqualifies a person from being a victim.
{¶13} R.C. 2743.61(B) states, in pertinent part:
If upon hearing and consideration of the record and evidence, the court decides that the decision of the attorney general appealed from is reasonable and lawful, it shall affirm the same. If the court decides that the decision of the attorney general is not supported by a preponderance of the evidence or is unreasonable or unlawful, the court shall reverse and vacate the decision or modify it and enter judgment thereon.
{¶14} R.C. 2743.51 (L)(1) defines a victim as a "person who suffers personal injury or death as a result of * * * criminally injurious conduct."
{¶15} Criminally injurious conduct is defined in R.C. 2743.51 (C)(1) as "any conduct that occurs or is attempted in this state; poses a substantial threat of personal injury or death; and is punishable by fine, imprisonment, or death."
{¶16} In Pratt, the court adopted the magistrate's recommendation that the decedent was not a victim of criminally injurious conduct because he voluntarily consumed the drugs that led to his death, despite the drug dealer in that case being convicted of involuntary manslaughter. First, the Pratt court stated that "[t]his Court has consistently held that, in the absence of foul play, a decedent's voluntary ingestion of a drug is not criminally injurious conduct, even if it results in their death." In re Pratt, Ct. of Cl. No. 2023-00203VI, 2023-Ohio-3348, affd jud 2023-Ohio-3487, ¶ 11. The judge cited In re Stanley and In re Camp in support of this assertion. Id. Next, the Pratt court determined that the only conduct between the offender and the decedent was the sale of drugs and that the drug deal itself did not pose a substantial threat of personal injury or death. Id., ¶ 12. Instead, the court determined that the conduct that posed such a threat was when decedent ingested the drugs. Id. The Pratt court then determined whether there was any foul play involved regarding decedent taking the drugs. The court stated that foul play would be found if the offender encouraged the decedent, by trick or coercion, to consume the substance, citing In re Howard, Ct. of Cl. No. 2019-00676VI (Sept. 1, 2021) affd jud (Oct. 13, 2021). The Pratt court determined there was no foul play and adopted the magistrate's decision. Id., ¶. 13-18.
{¶17} Here, as in Pratt, the alleged criminally injurious conduct is the sale of drugs to decedent. This alone does not constitute criminally injurious conduct. Further, when determining whether a decedent from a drug overdose is a victim of criminally injurious conduct as defined in R.C. 2743.51, whether the decedent voluntarily ingested the drugs and whether foul play occurred must be considered.
{¶18} Applicant did not provide any evidence that decedent involuntarily ingested the drugs or that foul play, such as trickery or coercion, occurred with respect to the ingestion of drugs that caused decedent's death.
{¶19} From review of the file and with full and careful consideration given to all the information presented at the hearing, the magistrate finds that applicant failed to prove by a preponderance of the evidence that decedent qualifies as a victim of criminally injurious conduct as defined in R.C. 2743.51. Accordingly, the magistrate concludes that the final decision of the AG is reasonable and lawful and recommends that it be affirmed.
{¶20} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).