ADMINISTRATIVE HEARINGS
COUNTY OF JOHNSTON / 04 CPS 1207
Katherine Smith,
Petitioner,
v.
N.C. Crime Victims Compensation Commission,
Respondent. / )
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) / DECISION
THIS MATTER came on to be heard before the Honorable Beryl E. Wade, Administrative Law Judge, on August 23, 2005 in Fayetteville, North Carolina.
APPEARANCES
For Petitioner: Katherine J. Smith
Post Office Box 573
Newton Grove, North Carolina 28366
For Respondent: Donald K. Phillips
Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, North Carolina 27699-9001
PETITIONER’S WITNESSES
1. Katherine J. Smith, Petitioner
2. Gloria J. Tolliver
RESPONDENT’S WITNESSES
1. Special Agent Blane Hicks, North Carolina State Bureau of Investigation
2. Detective Dale Wood, Smithfield Police Department
EXHIBITS
The following exhibits were admitted into evidence on behalf of the Respondent:
1. Exhibit 1: Photograph of contents of backpack located in victim’s bedroom.
2. Exhibit 2: Photograph of backpack hanging on wall in victim’s bedroom.
No exhibits were admitted into evidence on behalf of the Petitioner.
ISSUES PRESENTED
1. Whether the Petitioner presented substantial evidence that the requirements for an award have been met pursuant to N.C. Gen. Stat. §§ 15B-4(a) and 15B-2(12a).
2. Whether the victim was participating in a non-traffic misdemeanor at or about the time that his injuries occurred, in violation of N.C. Gen. Stat. § 15B-11(b)(1).
Based upon the testimony received during the hearing and the whole record, the undersigned makes the following:
FINDINGS OF FACT
1. The Petitioner in this case is Katherine Jean Smith (hereinafter “Petitioner”). On October 3, 2003, at approximately 8:30 p.m., Petitioner’s son, Elliot Emmanuel Smith (hereinafter “victim”), was shot while standing just inside the front door of his residence, located at 303-B Flowers Drive, Smithfield, North Carolina. Officers with the Smithfield Police Department responded within minutes; however, the victim died before they arrived.
2. On or about December 23, 2003, Petitioner completed a Victim Compensation Application on behalf of the victim seeking funeral and burial expenses. The application was received by the North Carolina Department of Crime Control and Public Safety, Victim Compensation Services Division, Crime Victims Compensation Commission (hereinafter “Respondent”).
3. Following a thorough investigation and review of the claim, the Respondent denied Petitioner’s claim on the basis that the victim was participating in a non-traffic misdemeanor at or about the time that his injury occurred. On June 10, 2004, Respondent mailed Petitioner a cover letter, Determination of Director for Denial, and Determination of Commission Denied, explaining the denial and giving notice to Petitioner of her right to appeal.
4. On July 19, 2004, Petitioner submitted a Petition for a Contested Case Hearing to the Office of Administrative Hearings alleging that the Respondent: (1) failed to use proper procedure; (2) failed to act as required by law or rule; and (3) otherwise substantially prejudiced her rights.
5. Special Agent Blane Hicks, a criminal investigator with the North Carolina State Bureau of Investigation, testified at the hearing. Agent Hicks is familiar with circumstances surrounding the victim’s death, the underlying criminal investigation, and prosecution, because he led the criminal investigation and, specifically, was in charge of the crime scene investigation. Agent Hicks responded to the scene, interviewed witnesses, and collected evidence, which included personal items removed from the victim’s body and bedroom. Detective Sheppard advised the Respondent of his findings and the results of his investigation, and otherwise provided information to the Respondent’s investigators concerning the case sub judice.
6. Agent Hicks arrived at 303-B Flowers Drive in Smithfield, approximately one hour after the shooting. Prior to his arrival, the scene was secured by members of the Smithfield Police Department.
7. Agent Hicks photographed and collected evidence as part of his investigation. Agent Hicks collected the following items from the victim’s body: (1) $45.00 in U.S. currency, which was found in the victim’s right front pants pocket; (2) one small plastic bag containing a green vegetable material consistent with marijuana, which was found in the victim’s left front pants pocket; and (3) a sprint cell phone, which was found on the waistband of the victim’s pants. Agent Hicks also found a backpack, containing eight, individually wrapped, plastic bags of a green vegetable material consistent with marijuana, and glass jar, containing $365.00 in U.S. currency, inside a bedroom belonging to the victim. These items were also collected and are depicted in Respondent’s Exhibits 1 and 2.
8. Witnesses interviewed at the scene identified the bedroom where these items were recovered as the room occupied by the victim. Agent Hicks also found mail and other documents addressed to the victim inside this room.
9. At the time of his investigation, Agent Hicks had fifteen years of law enforcement experience, which included training in drug enforcement and identification of controlled substances. Agent Hicks had also been involved in numerous drug investigations.
10. Agent Hicks visually examined the contents of the single plastic bag found in the victim’s pants pocket and the eight, individually wrapped plastic bags found in the victim’s bedroom. Agent Hicks determined that each of these bags contained marijuana and that the bags found in the victim’s bedroom were packaged in a manner consistent with the sale and/or delivery of the same.
11. In light of this, Agent Hick opined that the victim, had he lived, could have been charged with the criminal offenses of (1) misdemeanor possession of a controlled substance, and (2) felony maintaining a dwelling house for purposes of using, storing, or selling a controlled substance.
Based on the foregoing Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
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. The Petitioner bears the burden of establishing, by substantial evidence, that she is entitled as a “claimant,” pursuant to N.C. Gen. Stat. § 15B-2(2), to compensation from the Respondent. 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.” Substantial evidence is defined pursuant to N.C. Gen. Stat. § 15B-2(12a) as “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.”
3. 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).
4. N.C. Gen. Stat. § 15B-11 lists grounds for denial of a claim for compensation or for reduction of an award. Specifically, N.C. Gen. Stat. § 15B-11(b)(1) states that “a claim may be denied or an award of compensation may be reduced if [] [t]he victim was participating in a nontraffic misdemeanor at or about the time that the victim’s injury occurred.”
5. At or about the time of his injury, the victim was in possession of marijuana, in violation of N.C. Gen. Stat. § 90-95.
6. Substantial evidence exists to show that, at or about the time of his injury, the victim was participating in a nontraffic misdemeanor, within the meaning of N.C. Gen. Stat. 15B-11(b)(1).
Based on the foregoing Findings of Fact and Conclusion of Law, the undersigned make the following:
RECOMMENDED DECISION
It is hereby Recommended that the Respondent DENY Petitioner’s claim because substantial evidence exists to show that the victim was participating in a nontraffic misdemeanor at or about the time of his injury.
NOTICE
The agency making the final decision in this contested case 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 decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency that will make the final decision in this case is the North Carolina Crime Victims Compensation Commission.
ORDER
It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C.G.S. § 150B-36.
IT IS SO ORDERED.
This the 21st day of February, 2006.
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Beryl E. Wade Administrative Law Judge
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