[Cite as In re Seawright, 2011-Ohio-4319.]

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: RICHARD SEAWRIGHT 

RICHARD SEAWRIGHT 

 Applicant 

 

 Case No. V2010-50736 

Commissioners: 

Karl C. Kerschner 

Elizabeth Luper Schuster 

COMMISSIONER PANEL ORDER OF A TWO-

 {1}On December 10, 2009, the applicant, Richard Seawright, filed a 

compensation application as the result of a shooting incident which occurred on August 

16, 2009. On March 26, 2010, the Attorney General issued a finding of fact and 

decision denying the applicant’s claim pursuant to R.C. 2743.60(C), failure to fully 

cooperate with law enforcement. On April 6, 2010, the applicant submitted a request 

for reconsideration. On July 26, 2010, the Attorney General rendered a Final Decision 

finding no reason to modify the initial decision. On August 20, 2010, the applicant filed 

a notice of appeal from the July 26, 2010 Final Decision of the Attorney General. 

Hence, a hearing was held before commissioners Ostry, Kerschner, and Schuster on 

November 18, 2010 at 11:00 A.M. 

 {2}The applicant appeared at the hearing while Assistant Attorney General 

Heidi James appeared on behalf of the state of Ohio. 

 {3}The applicant stated that he did cooperate with law enforcement and his 

claim should be granted. 

 {4}The Attorney General asserts the efforts of law enforcement were substantial 

and diligent. However, at no time did the applicant comply with the reasonable 
Case No. V2010-50736 - 2 - ORDER

requests of law enforcement. The Attorney General asserts that when the applicant did 

contact police his concern was for the return of his weapon, which had been taken by 

police at the scene of the incident, and not the investigation of the criminal conduct 

surrounding his injuries. Accordingly, the Attorney General’s decision should be 

affirmed. 

 {5}The applicant called his father, Richard Black, to testify. Mr. Black related 

that he picked the applicant up from the hospital, at which time the applicant was 

instructed by his doctor to stay in bed for the next four months. The only time the 

applicant was allowed to leave his residence was for medical appointments. Mr. Black 

accompanied the applicant to those appointments since the applicant was not allowed 

to drive. The applicant had an operation after four months to remove one of the six 

bullets which struck him at the time of the criminally injurious conduct. 

 {6}Mr. Black revealed that the applicant was very concerned about the recovery 

of his duty weapon, which was believed to be in the possession of the Cleveland Police 

Department. Mr. Black stated he accompanied his son as he visited various precincts 

throughout the Cleveland metropolitan area to recover the weapon, but to no avail. 

With respect to the police report, Mr. Black confirmed that the applicant informed 

Detective Bilko of the Cleveland Police Department that the initial police report was 

incorrect, offered correct information over the phone, and identified the offenders. 

However, Detective Bilko stated this information could not be taken over the phone, and 

the applicant was instructed to come to the police department in person, although at the 

time his doctor had ordered strict bed rest. 

 {7}Upon cross-examination, Mr. Black admitted the first time he took the 

applicant to the precinct office, he tried to obtain his weapon and did not make a report 

relating to the criminally injurious conduct. Whereupon, the witness’ testimony was 

concluded. 

 {8}The applicant testified he has been employed by Cuyahoga County 

Protective Services for the past 13 years. He related exactly how the criminally 
Case No. V2010-50736 - 3 - ORDER

injurious conduct occurred. While at the hospital he gave the officer a description of 

what happened, but he stated a review of the initial police report did not accurately 

reflect the incident or the property in his vehicle at the time of the incident. 

 {9}The applicant related he contacted Detective Bilko via telephone and 

informed her of the omissions and discrepancies contained in the report. However, he 

was informed he needed to come to the station to fill out a report and to review mug 

shots, even though he informed the detective he was unable to do so due to his medical 

condition. Furthermore, he stated he cooperated and provided Detective Bilko with the 

names of the offenders. The applicant asserts he did cooperate but the police refused 

to come to his house and subsequently the case was closed. 

 {10}Upon cross-examination, the applicant related that he recognized the 

offenders and later provided the police with this information. The applicant stated he 

spoke to an officer at the scene and at the hospital and provided this officer with all the 

information surrounding the incident. Furthermore, he apprised the officer that his duty 

weapon was contained in the trunk of his vehicle and was assured that the weapon 

would be placed in safe keeping. The applicant stated he spoke to Detective Bilko on 

the phone one or two months after the incident, told her about omissions and 

discrepancies in the initial report, and informed her who the offenders were. He related 

that the detective stated he should come to the station to view a photo lineup. The 

applicant stated he was unable to do so since he was on bed rest and requested she 

come to his residence so he could view the photo lineup. The detective never 

complied with this request. The applicant stated he never viewed a photo lineup 

because by the time he was well enough to do so the case was closed. Whereupon, 

the applicant’s testimony was concluded. 

 {11}The Attorney General called Detective Lynn Bilko to testify via telephone. 

Detective Bilko was assigned to the third district of the detective bureau of the 

Cleveland Police Department. Detective Bilko stated the first contact she made with 

the applicant was on September 18, 2009, when she left a voice mail message at his 
Case No. V2010-50736 - 4 - ORDER

residence. On September 21, 2009, she sent the applicant a certified letter requesting 

he contact her. She called him again on September 27, 2009 and finally spoke with 

him on September 28, 2009. She asserts she spoke with him again on September 30, 

2009 and finally spoke with him on October 14, 2009 to set up an appointment so he 

could view a photo lineup. 

 {12}The detective related on September 28, 2009, the applicant provided her 

with a statement over the phone as to what happened at the time of the criminally 

injurious conduct, however, she informed him to come in to the department so a report 

could be typed. She stated he was upset about the inaccuracies contained in the initial 

report. She believes his biggest concern was about the location of his weapon. The 

detective related with respect to the weapon she believed it was being held due to 

pending marijuana possession and domestic violence charges. The detective stated 

that the case would not continue until the applicant came to the office to view the photo 

lineup and have a report typed. Although the applicant requested the detective come 

to his residence she refused. The case has not gone forward based upon the 

applicant’s failure to go to the police office. Detective Bilko stated this applicant’s 

failure to cooperate substantially impaired or impeded the investigation of this matter. 

 {13}Upon cross-examination, Detective Bilko admitted that the applicant 

provided a detailed description of what happened on the day of the incident via 

telephone. The officer also admitted that the applicant indicated he was taking 

medications for the injuries he sustained and wished to correct the initial police report 

over the phone. Furthermore, the detective acknowledged that the applicant told her 

he was unable to walk and could not leave his residence. Finally, the detective 

conceded that the applicant provided her with names of the suspected offenders. 

 {14}Upon questioning by the panel of commissioners, Detective Bilko, after 

reviewing the initial police report, could find no instances where the applicant was 

uncooperative with law enforcement either at the crime scene or at the hospital. She 

also admitted that when the applicant appeared at the police station some four months 
Case No. V2010-50736 - 5 - ORDER

after the incident it was possible that someone would have told him the case was 

closed. However, Detective Bilko insisted that the applicant should have spoken to her 

about the status of his case. Detective Bilko stated the applicant was cooperative with 

respect to giving the names of the alleged offenders, but he did not come into the office 

to give a formal statement or to view the photo lineup. 

 {15}Although Detective Bilko acknowledged that the applicant requested to 

view the photo lineup at home due to his medical condition, she stated photo lineups 

were to be conducted only at the office. She viewed the applicant as being 

uncooperative because he never appeared in person at the police station. 

 {16}On re-direct examination by the Attorney General, Detective Bilko 

emphasized that no criminal investigation could be conducted unless the applicant 

appeared in person at the police station to review a photo lineup. Furthermore, the 

applicant was more focused on the whereabouts of his gun and mistakes in the initial 

police report than in helping in the investigation of the criminal conduct. Whereupon, 

the testimony of Detective Bilko was concluded. 

 {17}In closing, the applicant stated he provided the police with information 

surrounding the incident, but the police failed to follow through. He asserts he was 

cooperative and this claim should be granted. {18}The Attorney General asserts the 

applicant was uncooperative because neither a photo lineup was conducted nor a 

statement was made at the police station which was the Cleveland Police Department’s 

protocol. Accordingly, the Attorney General’s Final Decision should be affirmed. 

Whereupon, the hearing was concluded. 

 {19}R.C. 2743.60(C) states: 

“(C) The attorney general, a panel of commissioners, or a judge of the court of 

claims, upon a finding that the claimant or victim has not fully cooperated with 

appropriate law enforcement agencies, may deny a claim or reconsider and 

reduce an award of reparations.” 
Case No. V2010-50736 - 6 - ORDER

 {20}The Attorney General has the burden with respect to proof of 

non-cooperation with law enforcement authorities [exclusionary criteria R.C. 2743.60]. 

In re Williams, V77-0739jud (3-26-79); and In re Brown, V78-3638jud (12-13-79). 

 {21}“As a general rule any action, inaction, or inexcusable neglect by an 

applicant which substantially impedes or impairs investigation or prosecution 

proceedings which have been initiated by the law enforcement authorities or which 

would have been initiated but for the action, inaction, or inexcusable neglect, constitutes 

a failure to fully cooperate as required by R.C. 2743.60(C).” In re Dray (1989), 61 Ohio 

Misc. 2d 417, 419. 

 {22}On April 6, 2011, the court issued a notice informing the parties that 

pursuant to Rule 1.12(b) of the Rules of Professional Conduct, Commissioner Randi M. 

Ostry recused herself from the case at bar and requested the parties file written 

notification by May 6, 2011 as to whether they want the motion decided by the two 

remaining panel commissioners who sat at the hearing; or they wanted a randomly 

selected third commissioner to review the case file and hearing and reach a decision 

together with the two sitting commissioners; or they want a rehearing of the matter. 

 {23}On April 20, 2011 and April 26, 2011, the applicant and the Attorney 

General respectively filed notices wishing to proceed with this matter based upon the 

decision of the two remaining panel of commissioners. 

 {24}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.” 

 {25}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 

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.” 
Case No. V2010-50736 - 7 - ORDER

 {26}The credibility of witnesses and the weight attributable to their testimony 

are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 

39 O.O. 2d 366, 227 N.E. 2d 212, paragraph one of the syllabus. The court is free to 

believe or disbelieve, all or any part of each witness’s testimony. State v. Antill (1964), 

176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E. 2d 548. 

 {27}From review of the case file and upon full and careful consideration given to 

all the testimony presented and the arguments of the parties at the hearing, we find the 

applicant fully cooperated with law enforcement and accordingly, the Attorney General’s 

decision shall be reversed. 

 {28}We find the applicant’s actions of describing the events surrounding the 

shooting incident to the officer at the scene of the crime and at the hospital, speaking to 

the detective in charge of the case on three separate occasions via telephone, informing 

the detective of the names of the suspected assailants; providing the detective with the 

name of the witness to the shooting; and requesting the detective come to his 

residence, due to his medical condition, to take a statement and view the photo lineup 

evidences a desire to cooperate. We find no evidence or testimony was submitted to 

rebut the credible testimony presented by the applicant. While the applicant did 

express his displeasure with discrepancies and omissions contained in the police report 

and was concerned about the recovery of his duty weapon, we do not find these 

collateral issues constitute either a failure to cooperate or an impairment of the criminal 

investigation. Finally, considering the fact that the applicant was a gunshot victim we 

do not believe his request that the police come to his residence to take a report or view 

a photo lineup to be unreasonable. 

 {29}Consequently, the July 26, 2010 decision of the Attorney General is 

reversed. 

 IT IS THEREFORE ORDERED THAT 

 {30}1) The July 26, 2010 decision of the Attorney General is REVERSED and 

judgment is rendered in favor of the applicant; 
Case No. V2010-50736 - 8 - ORDER

 {31}2) This claim is remanded to the Attorney General for total economic loss 

calculation and decision; 

 {32}3) This order is entered without prejudice to the applicant’s right to file a 

supplemental compensation application, within five years of this order, pursuant to R.C. 

2743.68; 

 {33}4) Costs are assumed by the court of claims victims of crime fund.

 _______________________________________ 

 KARL C. KERSCHNER 

 Commissioner

 _______________________________________ 

 ELIZABETH LUPER SCHUSTER 

 Commissioner 

ID #I:\VICTIMS\2010\50736\V2010-50736 Seawright.wpd\DRB-tad 

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

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

Filed 5-16-11 

Jr. Vol. 2278, Pgs. 163-171 

Sent to S.C. Reporter 8-26-11