[Cite as In re Anderson, 2012-Ohio-4681.]

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: MICHAEL K. ANDERSON 

LISA B. JACKSON 

AUDREY D. MC CLAIN 

ANITA L. MCMILLION 

DEBORAH PEAKS 

LISA E. ROYSTER 

 Applicants 

Case No. V2011-60280 

Commissioners: 

Necol Russell-Washington, Presiding 

Susan G. Sheridan 

E. Joel Wesp 

ORDER OF A THREE-COMMISSIONER PANEL

{¶1} On September 27, 2010, the applicants filed a compensation application as the 

result of the death of Michael Anderson. On January 11, 2011, the Attorney General 

issued a finding of fact and decision denying the applicants’ claim since Michael 

Anderson’s death was not the result of criminally injurious conduct. On February 11, 

2011, the applicants submitted a request for reconsideration. On February 22, 2011, 

the Attorney General rendered a Final Decision finding no reason to modify the initial 

decision. On March 24, 2011, applicant, Lisa Royster, filed a notice of appeal from the 

February 22, 2011 Final Decision of the Attorney General. Hence, a hearing was held 

before this panel of commissioners on February 8, 2012 at 10:40 A.M. 
Case No. V2011-60280 - 2 - ORDER

{¶2} Applicants Deborah Peaks, Lisa Royster, and Anita McMillion along with their 

attorney Philip Sheridan, Jr. attended the hearing, while Assistant Attorneys General 

David Lockshaw and Gwynn Kinsel represented the state of Ohio. 

{¶3} Prior to the commencement of the hearing Commissioner Wesp informed the 

parties that upon review of the claim file he noted that the applicants had contacted the 

{¶4} Justice League of Ohio for assistance. The point of contact person was Quinn 

Schmiege, who subsequently left the Justice League and became an associate with the 

Commissioner’s law firm. Commissioner Wesp assured the parties that he has never 

had any discussion with Ms. Schmiege concerning the applicants’ case. Upon 

disclosure to the parties no objection was raised regarding Commissioner Wesp’s 

participation in this hearing. 

{¶5} The applicants, in opening statement, assert that the offender, Lydia Howard, 

pushed Mr. Anderson out of the door of her apartment, knowing he was intoxicated and 

unsteady on his feet. The decedent was unable to regain his balance and fell down the 

stairs which caused Mr. Anderson’s subsequent injury and death. Accordingly, Lydia 

Howard caused Mr. Anderson to fall down the stairs and based upon the circumstances 

her conduct was reckless. 

{¶6} The Attorney General contended that Mr. Anderson’s death was investigated by 

the Columbus Police Department, the Franklin County Prosecutor’s Office, and the 

Franklin County Coroner all of whom concluded that there was insufficient evidence to 

proceed to the Grand Jury. The incident was characterized as a fall. The applicants 

have failed to prove, by a preponderance of the evidence, that Mr. Anderson was a 

victim of criminally injurious conduct. 

{¶7} The applicants called Elijah Anderson, Jr. to the witness stand. Elijah Anderson 

stated he was the older brother of Michael Anderson. Elijah stated that Michael had 

lived with him for approximately one year. He was aware that Michael had a drinking 

problem. 
Case No. V2011-60280 - 3 - ORDER

{¶8} Elijah related for a period of about three or four months both Michael and Lydia 

Howard resided with him. During that time, he observed numerous confrontations and 

altercations between the two, fueled by alcohol. Consequently he ordered Lydia to 

leave his home. Elijah testified based on past observations, he understood that Lydia 

Howard was well aware that Michael was unsteady on his feet when he had been 

drinking. 

{¶9} Elijah related that he received two telephone calls from Lydia in the early hours of 

the morning following the day of the incident. He asserted he received a call at 

approximately 1:00 A.M. from Lydia inquiring where Michael was, since she was unable 

to locate him. Sometime later a call was received but due to Elijah being asleep the 

call went to voice mail. Elijah disclosed upon listening to the voice mail Lydia admitted 

pushing Michael out the door, his equilibrium “was messed up” and he fell down the 

stairs. 

{¶10} Upon cross-examination, Elijah Anderson admitted he was not present at the 

time of the fall. Upon inquiry by the panel of commissioners, Elijah Anderson stated he 

did not notify the police concerning the voice mail message on the day he received it, 

however, at a later date he did inform the police and they made a copy of the message. 

Whereupon, the testimony of Elijah Anderson was concluded. 

{¶11} Applicant Lisa Royster was called to testify. Michael Anderson was Lisa’s 

youngest brother. Lisa stated she was notified of Michael’s hospitalization by her sister 

Deborah Peaks. Lisa asserts she had three telephone conversations with Lydia 

Howard concerning the incident. She asserts Lydia, in the first conversation, admitted 

pushing Michael which resulted in him falling down the stairs, however, in the two 

subsequent telephone conversations she denied pushing Michael. 

{¶12} Upon cross-examination Ms. Royster admitted she was not present at the time of 

the fall. Whereupon, the witness was excused. 

{¶13} The panel listened to a taped interview of Tashauna Howard conducted by the 

Columbus Police concerning the incident of July 18, 2010 involving Michael Anderson. 
Case No. V2011-60280 - 4 - ORDER

{¶14} The applicants contend that the statements of Columbus Detective Althea Young 

concerning the cause of Mr. Anderson’s fall contradict the recollection of Tashauna 

Howard on the taped interview. The applicants drew the panel’s attention to the taped 

recording of Tashauna Howard at 3:17, wherein she stated: “mom pushed him out the 

door and he hit the other door stumbled over his feet passed her on the landing 

stumbled down the steps and fell from about the sixth step.” At 4:47 on the tape, 

Tashauna stated: “he didn’t fully catch his balance before he went down the steps.” 

Applicants assert that recollection was directly in conflict with the written statement of 

Detective Young. The applicant points out that the stair case was not well maintained 

and no hand railing was present. 

{¶15} The applicants assert the panel should discount Lydia Howard’s statement that 

she never pushed him. The other witness to the incident, Tashauna Howard, admits 

that in fact her mother did push Michael Anderson. 

{¶16} Next, the applicants refer the panel to Tapes #1 and #10, identical tapes of 

telephone calls received from Lydia Howard to Elijah Anderson. The tape at 3:21 

reveals Lydia Howard stated she “shoved him out the door,” at 4:44, “he f... up out the 

door,” and 3:40 “I shoved him out the door.” 

{¶17} The applicants contend sufficient evidence is present to establish by a 

preponderance of the evidence that Michael Anderson was a victim of criminally 

injurious conduct. The applicants argue that Lydia Howard should be responsible for 

her actions. In this case her actions of pushing a known intoxicated individual out her 

door near a poorly maintained staircase constitutes recklessness. 

{¶18} Finally, the applicants direct the panel’s attention to State v. Hill, 2011-Ohio-5810, 

where a mother was found reckless for injuring her child with the use of bleach and a 

hot spoon, a home remedy, to cure ringworm, and notes that drag racing is considered 

reckless. The applicants contend that Lydia Howard’s actions were reckless and it was 

foreseeable that Michael Anderson would fall down the stairs as the result of her 

actions. 
Case No. V2011-60280 - 5 - ORDER

{¶19} The Attorney General chronicled that law enforcement did a thorough 

investigation concerning the death of Michael Anderson. The facts were submitted to 

the Franklin County Prosecutor’s Office which determined no crime had occurred. 

Furthermore, the Attorney General argues that on the taped interview with Tashauna 

Howard she recounts that Mr. Anderson regained his balance before ultimately falling 

down the stairs. Finally, Mr. Anderson’s voluntary intoxication was causally related to 

his fall. The Attorney General requests that the final decision be affirmed. 

Whereupon, the hearing was concluded. 

{¶20} R.C. 2743.51(C)(1) in pertinent part states: 

a. “(C) ‘Criminally injurious conduct’ means one of the following: (1) 

For the purposes of any person described in division (A)(1) of this section, 

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, or would be so punishable but for the fact that the person 

engaging in the conduct lacked capacity to commit the crime under the 

laws of this state.” 

{¶21} The applicant must prove criminally injurious conduct by a preponderance of the 

evidence. In re Rios (1983), 8 Ohio Misc. 2d 4. 

{¶22} “R.C. 2901.22(C) defines the culpable mental state of ‘recklessly’ as follows: 

a. “(C) A person acts recklessly when, with heedless indifference to 

the consequences, he perversely disregards a known risk that his conduct 

is likely to cause a certain result or is likely to be of a certain nature. A 

person is reckless with respect to circumstances when, with heedless 

indifference to the consequences, he perversely disregards a known risk 

that such circumstances are likely to exist.” 

{¶23} Further, the Committee Comment to H.B. No. 511, which established the 

definition of ‘culpable mental state’ pursuant to R.C. 2901.22, effective January 1, 1974, 

provides, in pertinent part, the following: “A person is said to be reckless under the 
Case No. V2011-60280 - 6 - ORDER

section when, without caring about the consequences, he obstinately disregards a 

known and significant possibility that his conduct is likely to cause a certain result or be 

of a certain nature, or that certain circumstances are likely to exist. In substance, the 

definition follows the definition of recklessness found in Roszman v. Sammett, 26 Ohio 

St.2d 94, 55 O.O.2d, 165, 269 N.E.2d 420 (1971).” 

{¶24} “As stated in Roszman, the burden of proof is upon the plaintiff (applicant) to 

show wanton (reckless) misconduct on the part of defendant’s (offender’s) driver. 

Further, that ‘proof must be of a nature that shows all absence of care or an absolute 

perverse indifference to the safety of others, knowing of a dangerous situation, yet 

failing to use ordinary care to avoid injury to others.’ Roszman, 26 Ohio St.2d at 98, 55 

O.O.2d 167, 269 N.E.2d 423.” In re Calhoun, V92-54871jud (9-12-94), 66 Ohio Misc. 

2d 159, 161-162. 

{¶25} 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.” 

{¶26} 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 

{¶27} 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.” Plaintiff must produce evidence which furnishes a reasonable basis for 

sustaining his claim. If his evidence furnishes for only a guess, among different 

possibilities, as to any essential issue in the case, he fails to sustain the burden as to 

such issue. Landon v. Lee Motors, Inc. (1954), 161 Ohio St. 82, 53 O.O. 25, 118 N.E. 

2d 147. In order to establish that the decedent was a victim of criminally injurious 

conduct, the applicants have the burden to prove by a preponderance of the evidence 

that: 1) the criminal conduct occurred or was attempted; 2) the criminal conduct posed a 
Case No. V2011-60280 - 7 - ORDER

substantial threat of personal injury or death; and 3) the criminal conduct was 

punishable by fine; imprisonment or death. In re Gradison, V78-3385jud (1-13-82). 

{¶28} Upon review of the case file and with full and careful consideration given to the 

testimony presented at the hearing, the audio tapes, and the arguments of the parties, 

we find the applicants have failed to prove by a preponderance of the evidence that 

Michael Anderson’s injuries and subsequent death were the result of criminally injurious 

conduct. 

{¶29} There is no doubt that Michael Anderson and Lydia Howard had a contentious 

relationship fueled by abuse of alcohol. However, there is insufficient evidence 

contained in the case file or presented at the hearing to satisfy the applicants’ burden of 

proof. A review of the totality of the statement the witness Tashauna Howard gave to 

police reveals that although Michael was initially pushed out the door by Lydia, he 

regained his balance and proceeded down the staircase until he stumbled and fell on 

the sixth step. While Lydia’s actions were negligent they did not rise to the level of 

recklessness. No testimony was offered to support the contention that Lydia pushed 

Michael down the steps. Tashauna’s statement reveals that Lydia pushed him out of 

her apartment into an adjoining apartment’s door. Furthermore, Michael was extremely 

intoxicated at the time of the incident, having a blood alcohol level of 0.367. Michael’s 

intoxication was causally related to his fall. 

{¶30} Accordingly, the Attorney General’s Final Decision of February 22, 2011 is 

affirmed, since the applicants have failed to meet their burden of proof to establish that 

Michael Anderson’s death was the result of criminally injurious conduct. 

{¶31} IT IS THEREFORE ORDERED THAT 

{¶32} The February 22, 2011 decision of the Attorney General is AFFIRMED; 

{¶33} This claim is DENIED and judgment is rendered in favor of the state of Ohio; 

{¶34} Costs are assumed by the court of claims victims of crime fund.
Case No. V2011-60280 - 8 - ORDER

 _______________________________________ 

 NECOL RUSSELL-WASHINGTON 

 Presiding Commissioner

 _______________________________________ 

 SUSAN G. SHERIDAN 

 Commissioner

 _______________________________________ 

 E. JOEL WESP 

 Commissioner 

ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\March - May 2012\V2011-60280 Anderson.wpd\DRB-tad 

 A copy of the foregoing was personally served upon the Attorney General and 

sent by regular mail to Franklin County Prosecuting Attorney and to: 

Filed 4-6-12 

Jr. Vol. 2282, Pgs. 170-177 

Sent to S.C. reporter 10-9-12