STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF JOHNSTON 05 CPS 0850

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SANDRA A. TINSLEY, )

PETITIONER, )

)

v. ) DECISION

)

NORTH CAROLINA CRIME VICTIMS )

COMPENSATION SERVICES, )

RESPONDENT. )

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On October 13, 2005, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Raleigh, North Carolina. On October 19, 2005, the undersigned issued an Order, ruling that Respondent had properly disallowed Petitioner’s claim for compensation, and ordered Respondent to file a proposed Decision on or before November 7, 2005. On November 7, 2005, Respondent filed its proposed Decision with the Office of Administrative Hearings.

APPEARANCES

For Petitioner: Sandra A. Tinsley, Pro Se

207 Barbour Road

Smithfield, North Carolina 27577

For Respondent: Hal Askins

Special Deputy Attorney General

North Carolina Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

PETITIONER’S WITNESSES

1. Petitioner, Sandra Tinsley

2. Steven Anthony Norman

3. Latrice Norman

4. Elsie M. Tukes

RESPONDENT’S WITNESS

1. Sgt. Ryan Sheppard, Investigator, Smithfield Police Department

EXHIBITS

The following exhibits were admitted into evidence for Respondent:

1. Respondent’s Exhibit 1— photocopy of DETERMINATION OF DIRECTOR constituting agency action

2. Respondent’s Exhibit 2— copy of property sheet documenting property removed from victim

ISSUES

1. Was the victim participating in a felony at or about the time that his injury occurred pursuant to N.C. Gen. Stat. § 15B-11(a)(6)?

2. Did the Petitioner provide substantial evidence within the meaning of N.C. Gen. Stat. § 15B-2(12a) of incurring an allowable expense within the meaning of N.C. Gen. Stat. § 15B-2(1)?

3. Has Petitioner presented substantial evidence to establish that the requirements for an award have been met pursuant to N.C. Gen. Stat. §§ 15B-4(a) and 15B-2(12a)?

FINDINGS OF FACT

Based upon the testimony at the hearing and the whole record, the undersigned makes the following:

1. On December 27, 2004, at approximately 3:40 p.m., Petitioner’s son, Conrad Tinsley (hereinafter “victim”) was at Petitioner’s home, 207 Barbour Road, Smithfield, NC. Mr. Tinsley walked outside of Petitioner’s home, and was shot with a rifle by Raoul Demetrius Wiggins, a/k/a “Meat Skin” (hereinafter “offender”). The victim was transported by emergency medical services to Johnston Memorial Hospital where he died from the wounds inflicted. Smithfield Police Sergeant Show accompanied the victim to the hospital, and remained with the victim at the hospital.

2. Detective Ryan Sheppard is a criminal investigator with the Smithfield Police Department. Detective Sheppard is familiar with the circumstances surrounding the victim’s death, and the underlying criminal investigation and prosecution of this matter. Sheppard was assigned to investigate the victim’s homicide.

3. On December 27, 2004, Detective Sheppard responded to the scene at 207 Barbour Road, interviewed witnesses, and collected evidence. Detective Sheppard provided to Respondent the findings of his investigation, and otherwise provided information to the Respondent’s investigators concerning this contested case.

4. Detective Sheppard responded to Johnston Memorial Hospital where the victim was photographed and his personal items collected as part of the investigation. A proper chain of custody of such items was substantiated. Detective Sheppard examined the following items which were found in the victim’s possession when he was shot: $470.47 of U.S. Currency, one brown wallet, one gold ring, one gold colored necklace, a key chain, one pack of Newport cigarettes, two cigarette lighters and a clear plastic bag containing thirteen clear plastic bags of a white substance, a clear hard plastic item containing a white substance and one clear bag containing a green leafy substance. (Respondent’s Exhibit 2). The $470.47 U.S. Currency was in small denominations.

5. When Detective Sheppard was assigned to investigate the victim’s homicide, he had twelve years of law enforcement experience. During these twelve years, Sheppard had received drug enforcement training for patrol officers, and identification of controlled substances training. He had worked several hundred drug cases, including being involved in undercover control substance transactions. As such, Detective Sheppard was well-trained and well-qualified in the identification of controlled substances.

6. Upon receipt of the items found in the victim’s possession, Detective Sheppard visually examined the contents of the clear plastic bag containing thirteen clear plastic bags of a white substance, a clear hard plastic item containing a white substance, and one clear bag containing a green leafy substance. Based upon his training and experience, Detective Sheppard determined these substances to be cocaine and marijuana, packaged in a manner consistent with the sale and delivery of the same.

7. In 2000, the victim was convicted of the felony Sale and Delivery of Controlled Substances in violation of N.C. Gen. Stat. §90-95, and Maintaining a Dwelling for Use, Storage or Sale of Controlled Substance in violation of N.C. Gen. Stat. §90-108. Detective Sheppard was familiar with the victim’s reputation within the community and knew that the victim had the reputation of someone involved in the sale of controlled substances. Based on his training and experience, Detective Sheppard opined that the victim’s possession of $470.47 U.S. Currency in small bills, and the packaging of cocaine and marijuana in small, individual plastic bags was consistent with behavior of a drug dealer.

8. On or about December 28, 2004, Petitioner submitted a Victim Compensation Application on behalf of the victim to Respondent seeking funeral expenses.

9. After investigating Petitioner’s application for victims compensation, Respondent denied Petitioner’s claim on the basis that the victim was participating in a felony at or about the time that his injury occurred.

10. On April 27, 2005, Respondent mailed Petitioner a cover letter and Determination of Director Denied. In these documents, Respondent denied Petitioner’s application for victim compensation, explained the reason for its denial, and advised Petitioner of her right to appeal. (Respondent’s Exhibit 1)

11. On May 24, 2005, Petitioner filed a Petition for a Contested Case Hearing (with attached pages) to the Office of Administrative Hearings alleging that Respondent had insufficient evidence to support its finding that the victim had been participating in a felony at or about the time that the victim’s injury occurred.

12. At the administrative hearing, Petitioner failed to provide any documentation or other evidence that she paid any funeral expenses or had any remaining balance.

13. At the time the victim was shot, he was in violation of N.C. Gen. Stat. §90-95 in that he was in possession of a felony amount of powdered cocaine and he was in possession of cocaine with the intent to sale or deliver. These violations are felony offenses.

CONCLUSIONS OF LAW

Based on the forgoing Findings of Fact, the undersigned concludes the following:

1. Respondent has the authority and responsibility under North Carolina General Statutes Chapter 15B, the “North Carolina Crime Victims Compensation Act,” to administer the Act in North Carolina, including the investigation and award or denial of claims.

2. Pursuant to N.C. Gen. Stat. § 15B-2(2), Petitioner bears the burden of establishing by substantial evidence that she is entitled as a “claimant” to compensation from the Respondent.

3. Regarding awards of compensation, N.C. Gen. Stat. § 15B-4 provides that “compensation for criminally injurious conduct shall be awarded to a claimant if substantial evidence establishes that the requirements for an award have been met.”

4. N.C. Gen. Stat. § 15B-2(12a), defines “substantial evidence” as “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”

5. In this case, substantial evidence exists to show that the victim was the “victim” of “criminally injurious conduct” as those terms are defined in N.C. Gen. Stat. §§ 15B-2(5) and (13).

6. N.C. Gen. Sta. § 15B-11 lists the grounds for denying a claim for compensation or for reduction of an award. Specifically, N. C. Gen. Stat. § 15B-11(a) states that:

An award of compensation shall be denied if: . . .

(6) The victim was participating in a felony at or about the time that the victim's injury occurred.

(emphasis added)

7. Pursuant to N.C. Gen. Stat. § 15B-11(a)(6), if substantial evidence establishes that the victim was participating in a felony, then the Respondent has no discretion but to deny the claim.

8. Substantial evidence of this case establishes that the victim was participating in felony offenses at or about the time of his injury, in violation of N.C.Gen. Stat. §90-95.

9. Petitioner failed to provide by substantial evidence that she had incurred an allowable expense within the meaning of N.C. Gen. Stat. § 15B-2(1) . At the administrative hearing, Petitioner failed to provide any documentation or other evidence that she paid any funeral expenses or had any remaining balance.

10. Petitioner did not prove by substantial evidence that she is entitled to an award pursuant to N.C. Gen. Stat. §§ 15B-4(a) and 15B-2(12a).

11. Because Petitioner did not prove by substantial evidence that she is entitled to an award pursuant to N.C. Gen. Stat. §§ 15B-4(a) and 15B-2(12a), and substantial evidence proved that the victim was participating in a felony at or about the time of his injury, Petitioner is not entitled to compensation from Respondent.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned determines that the Respondent‘s decision to deny Petitioner’s claim for compensation should be UPHELD.

NOTICE AND ORDER

The North Carolina Crime Victims Compensation Commission will make the Final Decision in this case. That agency is required to give each party an opportunity to file exceptions to this decision issued by the undersigned, and to present written arguments to those in the agency who will make the Final Decision. N.C. Gen. Stat. § 150B-36(a). In accordance with N.C. Gen. Stat. § 150B-36, the agency shall adopt each Finding Of Fact contained in the Administrative Law Judge’s decision unless the Finding is clearly contrary to the preponderance of the admissible evidence.

For each Finding of Fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the Finding Of Fact and the evidence in the record relied upon by the agency in not adopting the Finding Of Fact. For each new Finding Of Fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail, the evidence in the record relied upon by the agency in making the Finding Of Fact. The agency shall adopt the decision of the Administrative Law Judge, unless the agency demonstrates that the Administrative Law Judge’s Decision is clearly contrary to the preponderance of the admissible evidence in the official record. In accordance with N.C. Gen. Stat. § 150B-36, the agency making the Final Decision in this matter shall also serve a copy of the Final Decision on the Office of Administrative Hearings at 6714 Mail Service Center, Raleigh, NC 27699-6714,

This the 2nd day of December, 2005.

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Melissa Owens Lassiter Administrative Law Judge