STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF BLADEN 09 DOJ 0956

DONALD KOONS, JR., )

Petitioner, )

)

)

v. ) DECISION

)

NORTH CAROLINA CRIMINAL )

JUSTICE EDUCATION AND )

TRAINING STANDARDS )

COMMISSION, )

Respondent. )

)

______________________________ )

In accordance with North Carolina General Statute 150B-40(e), Respondent requested the designation of an administrative law judge to preside at an Article 3A, North Carolina General Statute Chapter 150B, contested case hearing of this matter. Based upon Respondent’s request, Administrative Law Judge Beecher R. Gray heard this contested case in Raleigh, North Carolina on June 26, 2009.

APPEARANCES

Petitioner: Mose L. Highsmith, Attorney at Law

Highsmith Law Firm, PA

709 Princess Street

Wilmington, North Carolina 28401

Respondent: Mike Heavner, Assistant Attorney General

N.C. Department of Justice

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

ISSUE

Whether Respondent’s proposed denial of Petitioner’s criminal justice officer certification based upon Petitioner’s commission of a Class B Misdemeanor is supported by substantial evidence.

RULES AT ISSUE

12 NCAC 9B.0111(1)(c)

12 NCAC 9A.0103(23)(b)

12 NCAC 9A.0204(b)(2)

Mass. Ann. Laws. ch. 90, §24(2)(a1/2)(2)

N.C.G.S. § 20-166

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned Administrative Law Judge makes the following Findings of Fact. In making the Findings of Fact, the Undersigned Administrative Law Judge has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. Both parties received Notice of Hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper. Petitioner received the Notification of Probable Cause to deny criminal justice officer certification letter mailed by the Respondent on January 14, 2009.

2. The North Carolina Criminal Justice Education and Training Standards Commission has authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify criminal justice officers and to revoke, suspend, or deny such certification.

3. 12 NCAC 9B .0111(1)(c) requires that every law enforcement officer employed by an agency in North Carolina shall not have committed or been convicted of a crime or unlawful act defined as a “Class B misdemeanor” within the five year period prior to the date of application for employment.

4. 12 NCAC 9A .0103 (23)(b) provides that

. . .Class B Misdemeanor also includes any act committed or omitted in violation of any . . . criminal statute, or criminal traffic code of any jurisdiction other than North Carolina, either civil or military, for which the maximum punishment allowable for the designated offense under the laws, statutes, or ordinances of the jurisdiction in which the offense occurred includes imprisonment for a term of more than six months but not more than two years. Specifically excluded from this grouping of "Class B Misdemeanor" criminal offenses for jurisdictions other than North Carolina, are motor vehicle or traffic offenses designated as being misdemeanors under the laws of other jurisdictions with the following exceptions: Class B Misdemeanor does expressly include . . . those traffic offenses occurring in other jurisdictions which are comparable to the traffic offenses specifically listed in the Class B Misdemeanor Manual . . . .

5. 12 NCAC 9A .0204(b)(2) provides, in pertinent part, that “[t]he Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer . . . fails to meet or maintain one or more of the minimum employment standards required by 12 NCAC 09B .0100 for the category of the officer's certification . . . .”

6. Chapter 90, §24(2)(a1/2)(2) of the Annotated Laws of Massachusetts states:

Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars.

7. N.C.G.S. §20-166(c) provides that when a driver knows or reasonably should know that the vehicle which the driver is operating is involved in a crash which resulted in damage to property shall immediately stop the vehicle at the scene of the crash.

8. A violation of N.C.G.S. § 20-166(c) constitutes a Class B misdemeanor under 12 NCAC 09A .0103(23)(b) of the Commission’s rules and is specifically listed in the Class B Misdemeanor manual.

9. The criminal offense of “Leaving the Scene of Property Damage”, in violation of Mass. Ann. Laws. ch. 90, §24(a1/2)(1), is comparable to N.C.G.S. §20-166(c).

10. A violation of Mass. Ann. Laws. ch. 90, §24(a1/2)(1) constitutes a Class B misdemeanor under 12 NCAC 9A .0103(23)(b) of the Commission's administrative rules in that it is comparable to the Class B Misdemeanor offense of N.C.G.S. §20-166(c).

11. On August 18, 2008, the Leland Police department submitted a Report of Appointment/ Application for Certification Law Enforcement Officer, Form F-5A, on behalf of Petitioner to the North Carolina Criminal Justice Standards Division. (Respondent’s Exhibit 3)

12. Richard Squires, investigator with the North Carolina Criminal Justice Standards Division, testified that while processing Petitioner’s application, the Division determined that Petitioner had been charged with “Leaving the Scene of Property Damage” in Massachusetts.

13. After investigating the offense, Mr. Squires presented the evidence including court documents (Petitioner’s Exhibit 3) and police report to the North Carolina Criminal Justice Education and Training Standards Commission’s Probable Cause Committee on November 20, 2008 for review. The court documents indicated that Petitioner either pled guilty to or admitted to sufficient facts that he violated Mass. Ann. Laws. ch. 90, § 24(a1/2)(1). Prior to the Probable Cause meeting, Mr. Squires had not spoken with any of the eyewitnesses other than Petitioner. Petitioner spoke at the Probable Cause meeting.

14. Based upon the information presented at the probable cause hearing, the Probable Cause Committee found that there was Probable Cause to believe that on April 10, 2005, Petitioner committed the criminal offense of “Leaving the Scene of Property Damage.” On that date Petitioner operated a Toyota Tacoma truck and probably struck a red Dodge Stratus in a McDonald’s parking lot after which he left the scene without stopping and making known his name, residence, and the registration number of his vehicle, in violation of Mass. Ann. Laws. ch. 90, §24(a1/2)(1). (Respondent’s Exhibit 4)

15. The Probable Cause Committee found Probable Cause to believe that Petitioner’s application for certification as a criminal justice officer should be denied for failure to comply with the minimum standards for certification as a criminal justice officer. (Respondent’s Exhibit 4) Petitioner failed to meet the minimum standards in that he committed the Class B Misdemeanor Offense of Leaving the Scene of Property Damage within the 5 year period prior to the date of application. Under 12 NCAC 09B .0111(1)(c), Petitioner would not be eligible for certification for 5 years from April 10, 2005, the date of commission of the offense.

16. On the morning of April 10, 2005, Petitioner was driving his friend’s Toyota Tacoma pickup truck. He stopped at a McDonald’s restaurant located at a rest area. The parking lot at the McDonald’s restaurant is a place to which the public has right of access. After eating at McDonald’s, Petitioner and two of his friends got into the Tacoma pickup. Petitioner was driving. Shortly after leaving the rest area, Petitioner noticed a car flashing its lights and he pulled over on the side of the road approximately one-half mile from the rest area. (Respondent’s Exhibit 1, Stipulation of Fact)

17. Trooper David Lemar is a law enforcement officer with the Massachusetts State Police. He was on duty on Sunday, April 10, 2005. At approximately 3:30 a.m., Trooper Lemar responded to a two car accident on Route 3 Southbound, south of exit 4. (Respondent’s Exhibit 1, Stipulation of Fact)

18. Trooper Lemar charged Petitioner with Leaving the Scene of Property Damage in violation of Mass. Ann. Laws. ch. 90, §24(2)(a1/2)(2) and with a traffic violation of improper backing. (Respondent’s Exhibit 1, Stipulation of Fact)

19. “Leaving the Scene of Property Damage” in violation of Mass. Ann. Laws. ch. 90, §24(2)(a1/2)(2) is a Class B Misdemeanor under 12 NCAC 9A .0103 and as set forth in the Class B Misdemeanor Manual as published by the Department of Justice. (Respondent’s Exhibit 1, Stipulation of Fact)

20. On May 25, 2005 Petitioner went to court in Massachusetts. He waived his right to counsel and a jury trial. He spoke with the prosecutor and entered a CWOF (Continued without Finding) agreement. In entering this agreement, he admitted there were sufficient facts to support the criminal charge of “Leaving the Scene of Property Damage” in violation of Mass. Ann. Laws. ch. 90, §24(2)(a1/2)(2). The judge entered the CWOF and continued the case until November 24, 2005. Petitioner was placed on administrative probation. The charges were dismissed on November 25, 2005. (Respondent’s Exhibit 1, Stipulation of Fact)

21. Petitioner completed a Personal History Statement in conjunction with his application for employment with the Leland Police Department in May 2008. On his Personal History Statement, Petitioner disclosed that he had been charged with “Leaving the Scene of Property Damage” by the Massachusetts State Police and the charge was dismissed on November 25, 2005. (Respondent’s Exhibit 1, Stipulation of Fact)

22. In a Stipulation of Expected Testimony, Trooper Lamar stated that upon arriving at the scene in question, he saw a red Dodge Stratus and a black Toyota Tacoma truck. Cassandra Drew, a female, and Petitioner were at the scene. Drew was the driver of the Dodge. Petitioner was the driver of the Tacoma. There also were two passengers in the Tacoma. Trooper Lemar inspected both vehicles for damage. The Dodge had a small dent in the driver’s side door. He estimated the damage was less than $1000. The Toyota Tacoma had practically no damage on it. It had a scuff mark on the right side of its rear bumper. (Respondent’s Exhibit 2). According to Trooper Lemar, Drew told him that she was parked in front of the McDonald’s and had begun to back out of a parking spot when her vehicle was struck by the Tacoma driven by Petitioner. She stated the Tacoma then turned off its headlights and left the accident scene. (Respondent’s Exhibit 2)

23. According to Trooper Lemar, Petitioner told him that he wanted to file a complaint against a man who was with Drew at the roadside scene before the trooper arrived. Petitioner claimed the male had swung an ice pick at him. Petitioner stated that the man left the scene as law enforcement was approaching. Cassandra Drew saw the approaching blue lights of the Trooper’s vehicle and told the male, her boyfriend, to get out of there, which he did. (Respondent’s Exhibit 2)

24. Trooper Lemar questioned Drew about the boyfriend. She admitted to the Trooper that the man was her boyfriend but stated that she had not known him for very long and only gave non-descriptive information about his identity. Drew stated that there was no fight between her boyfriend and Petitioner. Drew stated that she and her boyfriend only yelled at Petitioner as they pointed to the damage on her vehicle. (Respondent’s Exhibit 2)

25. According to Trooper Lemar, Petitioner told him that he did not realize that he hit the Dodge Stratus until after he had stopped on the side of the road on Route 3. Trooper Lemar inspected the damage to the vehicles again and in his opinion, the impact that caused the damage was likely great enough to rock both vehicles and alert both parties to the accident. However, it also is his opinion that it is possible that Petitioner was unaware that he hit the other vehicle. (Respondent’s Exhibit 2)

26. In a Stipulation of Expected Testimony, John Hoban stated that on April 10, 2005, he and Derek Crowe were passengers in the vehicle operated by Petitioner. Petitioner was the designated driver for the evening as Mr. Hoban and Mr. Crowe had been drinking. Mr. Hoban did not feel any collision in the parking lot of McDonald’s, nor at any time prior to the incident on the shoulder of road did Mr. Hoban have any reason to believe that a collision had occurred. (Petitioner’s Exhibit 2)

27. In a Stipulation of Expected Testimony, Derek Crowe stated that on April 10, 2005, he and Mr. Hoban were passengers in the vehicle operated by Petitioner. Petitioner was the designated driver and had not been drinking. Mr. Crowe and Mr. Hoban earlier had been consuming alcoholic beverages. Between the time that Petitioner, Mr. Hoban, and Mr. Crowe entered the vehicle at McDonald’s until the incident on the roadside, Petitioner made no statement, and took no action that would give any indication to Mr. Crowe that Petitioner was aware that their vehicle was involved in a collision with another vehicle. Mr. Crowe did not feel any collision in the parking lot of McDonald’s, nor at any time prior to the incident on the roadside did Mr. Hoban have any reason to believe that a collision had occurred. (Petitioner’s Exhibit 1)

28. Petitioner testified in this contested case hearing. Petitioner is 29 years old and has been employed as a civilian with the Leland Police Department for almost a year. Prior to the hearing, he has lived in North Carolina for approximately 2 1/( years. During the early morning hours of April 10, 2005, while he was living in Massachusetts, he was the designated driver and was driving two of his friends in another friend’s truck when they stopped at a McDonald’s at a rest area. He testified consistently with his written statement dated September 8, 2008. (Respondent’s Exhibit #5) He and his friends got back into the truck after eating and left the McDonald’s parking lot. Shortly after pulling onto the highway, he noticed a car behind him flashing its lights so he pulled over onto the shoulder of the road at which time a man jumped out of the vehicle that was flashing its lights. The man had an icepick and was yelling that Petitioner had run into his girlfriend’s car. Petitioner saw blue lights approaching at which time the man fled the scene after being told to do so by his girlfriend. The female whose vehicle was dented stayed at the scene. She was in a different car than the man who had the icepick. The Plymouth Police Department arrived at the scene and stayed until Trooper Lemar arrived. Petitioner was very upset because he had been threatened on the side of the road by the boyfriend with an ice pick. Petitioner testified that he was “very heated” at the time and was angry and “mouthy” when talking to Trooper Lemar at the side of the road. He explained using maps of the area (Petitioner’s Exhibits # 4 and #5) where he had pulled over in relation to the McDonald’s parking lot. He reiterated that he did not believe that he had hit the car.

29. Petitioner went to court for the charges of “Leaving the Scene of Property Damage” and “Improper Backing”. He stated that he was scared of losing his license. He further thought there was a possibility that, just as the trooper did not believe him when Petitioner told him that he did not hit the car, the judge also might not believe him. He met with the prosecutor who told Petitioner that he definitely would not lose his license and the charge would be dropped in six months if he admitted responsibility to “improper backing”, accepted a CWOF (Continued Without Finding) on the charge of “Leaving the Scene”, and paid for the damage to the other vehicle. Petitioner’s administrative probation consisted of paying court costs, paying for the car repair, and returning to court in six months.

30. The disposition method for the charges faced by Petitioner was Sufficient Facts Found but Continued Without Guilty Finding. The charges were dismissed per administrative probation on November 25, 2005. (Petitioner’s Exhibit 3) Petitioner stated that had he known what he now knows, he would have hired an attorney to contest the charge as opposed to agreeing to the administrative probation in return for a guaranteed dismissal.

31. Petitioner wants to be a police officer with the Leland Police Department.

32. Timothy Jayne testified that he is the Chief of Police for Leland Police Department. Chief Jayne stated that his predecessor hired Petitioner, and while Chief Jayne did not hire Petitioner, he is very satisfied with the civilian duties performed by Petitioner over the past several months, and is satisfied that Petitioner is dedicated to becoming a police officer. He takes seriously his responsibility to hire the best and believes Petitioner would be an asset.

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case.

2. The North Carolina Criminal Justice Education and Training Standards Commission has authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9A, to certify criminal justice officers and to revoke, suspend, or deny such certification.

3. 12 NCAC 9B .0111(1)(c) requires that every law enforcement officer employed by an agency in North Carolina shall not have committed or been convicted of a crime or unlawful act defined as a “Class B misdemeanor” within the five year period prior to the date of application for employment.

4. The criminal offense of “Leaving the Scene of Property Damage”, in violation of Mass. Ann. Laws. ch. 90, § 4(a1/2)(1) is comparable to N.C.G.S. § 20-166(c).

5. A violation of Mass. Ann. Laws. ch. 90, §24(a1/2)(1) constitutes a Class B misdemeanor under 12 NCAC 9A .0103(23)(b) of the Commission's administrative rules in that it is comparable to the Class B Misdemeanor offense of N.C.G.S. § 20-166(c).

6. Both the North Carolina and Massachusetts statutes require a person to know or reasonably know that they have struck another vehicle.

7. A preponderance of the evidence does not support the conclusion that on April 10, 2005, Petitioner committed the offense of “Leaving the Scene of Property Damage” because there is insufficient evidence that Petitioner knew or reasonably should have known that he hit the car in question. Specifically, the three eyewitnesses in the truck all stated they did not know another vehicle had been hit. More significantly, the Trooper stated it was possible that Petitioner was unaware of hitting another vehicle. The fact that Petitioner stopped within seconds of leaving the parking lot as opposed to continuing suggests he was unaware of hitting the other vehicle. Finally, and perhaps most significantly, the fact that an eyewitness to the events, and boyfriend of Cassandra Drew, the person’s car which allegedly was hit, fled the scene when he saw the police approaching and the fact that Drew would not provide the police with the name of this person or contact information for this person, raises doubt as to whether the misdemeanor occurred.

8. The findings of the Probable Cause Committee of Respondent are not supported by substantial evidence.

9. The party with the burden of proof in a contested case must establish the facts required by G.S. §150B-23(a) by a preponderance of the evidence. N.C.G.S. §150B-29(a). The administrative law judge shall decide the case based upon the preponderance of the evidence. N.C.G.S. § 150B-34(a).

10. Petitioner has the burden of proof in the case at bar. Petitioner has met this burden. Petitioner has shown by a preponderance of the evidence that Respondent’s proposed denial of Petitioner’s criminal justice officer certification is not supported by substantial evidence.

DECISION

NOW, THEREFORE, based upon the foregoing Findings of Fact and Conclusions of Law, the Undersigned Administrative Law Judge finds that Respondent’s proposed denial of Petitioner’s criminal justice officer certification is not supported by substantial evidence and that his application for certification should be approved.

If the Commission disagrees with this proposal for decision and finds that Petitioner did commit a Class B misdemeanor, the Undersigned Administrative Law Judge recommends that the Commission grant Petitioner probationary certification through April 10, 2010.

NOTICE AND ORDER

The Agency making the Final Decision in this contested case is required to give each party an opportunity to file Exceptions to the Proposal for Decision, to submit Proposed Findings of Fact and to present oral and written arguments to the Agency. N.C.G.S. §150B-40(e).

The Agency that will make the Final Decision in this contested case is the North Carolina Criminal Justice Education and Training Standards Commission.

IT IS SO ORDERED.

This the 27th day of July, 2009.

____________________________

BEECHER R. GRAY

ADMINISTRATIVE LAW JUDGE

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