{ "id": 11915978, "name": "MARK ANTHONY McCRIMMON, Petitioner v. CRIME VICTIMS COMPENSATION COMMISSION, Respondent", "name_abbreviation": "McCrimmon v. Crime Victims Compensation Commission", "decision_date": "1995-12-19", "docket_number": "No. COA94-1029", "first_page": "144", "last_page": "150", "citations": [ { "type": "official", "cite": "121 N.C. App. 144" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "15 ALR5th 391", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "322 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "172" } ], "opinion_index": 0 }, { "cite": "312 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751791 ], "year": 1984, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0181-01" ] }, { "cite": "401 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "365", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "328 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544115 ], "year": 1991, "pin_cites": [ { "page": "317", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0313-01" ] }, { "cite": "311 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "565" }, { "page": "565", "parenthetical": "citations omitted" }, { "page": "565" } ], "opinion_index": 0 }, { "cite": "310 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402972 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "233" }, { "page": "233", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0227-01" ] }, { "cite": "400 S.E.2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "temporary stay dissolved 10 January 1991" } ], "opinion_index": 0 }, { "cite": "328 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542181, 2544340, 2539736, 2542780, 2545055 ], "year": 1991, "pin_cites": [ { "parenthetical": "temporary stay dissolved 10 January 1991" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0271-01", "/nc/328/0271-03", "/nc/328/0271-04", "/nc/328/0271-05", "/nc/328/0271-02" ] }, { "cite": "398 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1990, "pin_cites": [ { "page": "885" }, { "page": "885", "parenthetical": "citation omitted" }, { "page": "88" }, { "page": "885" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527322 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "118" }, { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0108-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527936 ], "year": 1994, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0668-01" ] }, { "cite": "435 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "363", "parenthetical": "citations omitted" }, { "page": "363", "parenthetical": "citation omitted" }, { "page": "363" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520617 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "165", "parenthetical": "citations omitted" }, { "page": "165" }, { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0161-01" ] } ], "analysis": { "cardinality": 680, "char_count": 13462, "ocr_confidence": 0.762, "pagerank": { "raw": 5.04233573508027e-08, "percentile": 0.31662174126754106 }, "sha256": "ad31a0fe68d1ed8dbe257338dd9b21fd97010fa5ba13a339fbf919e2961e8675", "simhash": "1:69956ed09c3e0e2e", "word_count": 2142 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and WALKER concur." ], "parties": [ "MARK ANTHONY McCRIMMON, Petitioner v. CRIME VICTIMS COMPENSATION COMMISSION, Respondent" ], "opinions": [ { "text": "JOHN, Judge.\nPetitioner applied to the Crime Victims Compensation Commission of the North Carolina Department of Crime Control and Public Safety (the Commission) for benefits after being shot while attempting to flee a convenience store with money he stole from a customer. The Final Decision of the Commission denied petitioner\u2019s claim, ruling that his \u201ccontributory misconduct\u201d barred recovery. Petitioner appeals the order of the trial court affirming the Commission, arguing that being shot was not a foreseeable result of his theft of the store patron\u2019s money. Respondent counters that \u201cthe Victims Compensation Fund is not a Workers Compensation fund for criminals that are injured during their illicit employment.\u201d We affirm the trial court.\nPertinent facts and procedural information include the following: On 20 March 1992 at about 4:10 p.m., petitioner drank four or five beers at the home of a friend. After leaving the residence, petitioner drove to the Hillcrest Trading Post (Hillcrest), a convenience store, to purchase some breath mints. Petitioner departed the store without incident, but eventually returned between 6:15 and 6:30 p.m. He entered and removed a bottle of soda from the \u201cdrink box,\u201d whereupon he saw a customer, Charlie Lemmonds (Lemmonds), holding a twenty-dollar bill. Petitioner made a comment to Lemmonds to distract him, then snatched the bill and ran towards the exit door, still holding the bottle of soda. Frederick E. Sineath (Sineath), the proprietor of Hillcrest, heard a customer say \u201che got my money.\u201d Sineath shot petitioner in the back as the latter was opening the store\u2019s exit door. In consequence of injuries received, petitioner remains paralyzed from the waist down. He was subsequently charged with larceny, while Sineath was charged with assault.\nSineath in his deposition and Lemmonds in his testimony at Sineath\u2019s probable cause hearing each stated that petitioner, prior to being shot by Sineath, turned and raised the bottle of soda towards Sineath in a threatening manner. Both men also testified Sineath then ordered petitioner to stop as the latter was opening the door. Petitioner insisted he heard no command to stop and that he in no way threatened Sineath with the bottle.\nAbout 21 August 1992, petitioner filed a claim with the Commission seeking benefits pursuant to the North Carolina Crime Victims Compensation Act (the Act), N.C. Gen. Stat. \u00a7 15B-1 et seq. (1994). On 8 June 1993, petitioner\u2019s claim was denied.\nPetitioner thereafter filed a Petition for Contested Case Hearing before the Office of Administrative Hearings. He alleged that taking the twenty dollar bill from the hand of the customer did not contribute to his injuries, \u201csince it was unforeseeable that a third person would shoot the [petitioner in the back\u201d and that the \u201ccriminal act [of Sineath] should override any finding of contributory misconduct.\u201d\nThe matter was heard before- Administrative Law Judge Brenda Becton on 4 November 1993, who subsequently filed a recommended decision allowing petitioner\u2019s claim. However, in its Final Decision of 2 February 1994, the Commission denied the claim, concluding inter alia that \u201c[petitioner's misconduct . . . contributed to his injuries;\u201d that \u201cit was reasonably foreseeable to the [p]etitioner that his illegal acts could result in injury to himself;\u201d and that \u201cthe General Assembly did not intend for a person injured during the commission of criminal acts to receive any compensation [which is] reserved for truly innocent victims of crime.\u201d\nPetitioner then filed a Petition for Review in the Moore County Superior Court, which affirmed the Commission\u2019s Final Decision by order dated 5 July 1994. On 2 August 1994, petitioner gave notice of appeal to this Court.\nPetitioner\u2019s single assignment of error asserts that:\nthe act of Mr. Sineath was not reasonably foreseeable and therefore, by application of tort principles, [petitioner\u2019s acts did] not [constitute] contributory misconduct.\nPetitioner thus essentially argues that the conclusions of the Commission that his \u201cmisconduct. . . contributed to his injuries\u201d and that it was \u201creasonably foreseeable to the [petitioner that his illegal acts could result in injury to himself\u2019 were affected by error of law.\nUnder the North Carolina Administrative Procedure Act, codified at Chapter 150B of the General Statutes, if a party argues the final decision of an administrative agency is based upon error of law, initial judicial review is to be de novo. In re Appeal by McCrary, 112 N.C. App. 161, 165, 435 S.E.2d 359, 363 (1993) (citations omitted). De novo review requires a court to consider a question anew, as if not considered or decided by the agency. Amanini v. N.C. Dept. of Human Resources, 114 N.C. App. 668, 674, 443 S.E.2d 114, 118 (1994). Where the initial reviewing court, here the Superior Court, should have conducted de novo review, this Court will also directly review the agency\u2019s decision under a de novo review standard. McCrary, 112 N.C. App. at 165, 435 S.E.2d at 363 (citation omitted). We therefore proceed to examine the Commission\u2019s decision in compliance with these rules.\nThe Act awards compensation to victims of \u201ccriminally injurious conduct.\u201d N.C. Gen. Stat. \u00a7 15B-4(a) (1994). The Commission \u201cassumed without conceding\u201d for purposes of its decision that petitioner\u2019s \u201cinjury was the result of criminally injurious conduct,\u201d and denied petitioner\u2019s claim based upon N.C. Gen. Stat. \u00a7 15B-ll(b) (1994). The statute provides:\n[a] claim may be denied and an award of compensation may be reduced upon a finding of contributory misconduct by the claimant....\nG.S. \u00a7 15B-ll(b).\nHowever, petitioner maintains that \u201cthe act of Mr. Sineath was not reasonably foreseeable and therefore, by application of tort principles, [petitioner\u2019s attempt to steal the money] was not contributory misconduct\u201d so as to justify reduction or denial of petitioner\u2019s claim under the statute. We believe petitioner misapprehends the purport of \u201ccontributory misconduct.\u201d\nWhile \u201ccontributory misconduct\u201d is not defined in the Act, this Court has previously interpreted the phrase. Evans v. N. C. Dept. of Crime Control, 101 N.C. App. 108, 118, 398 S.E.2d 880, 885 (1990), temporary stay allowed, 328 N.C. 271, 400 S.E.2d 446 (1991) (temporary stay dissolved 10 January 1991). \u201cMisconduct\u201d is behavior that is \u201cunlawful or . . . breache[s] the standard of conduct acceptable to a reasonable person.\u201d Id. Further,\nin order for [a] claimant\u2019s misconduct to be contributory [under the Act] it must combine with criminal action on the part of another to become a \u2018real, efficient and proximate cause of the injury.\u2019\nId. at 117, 398 S.E.2d at 885 (citation omitted). A proximate cause is one which\nin natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff\u2019s injuries, and without which the injuries would not have occurred, and one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all facts as they existed.\nId. (quoting Hairston v. Alexander Tank Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984)).\nThe test under Evans, therefore, is two-pronged, that is, 1) was there misconduct on the part of petitioner and, if so, 2) was that misconduct a proximate cause of his injury?\nIn the case sub judice, it is undisputed that shortly before being injured, petitioner snatched money from a convenience store customer without authorization to do so and attempted to flee the store with the customer\u2019s money. Theft is an unlawful act; under Evans, \u201cmisconduct includes unlawful conduct as a matter of law.\u201d Id. at 117, 398 S.E.2d at 88. Utilizing the de novo standard, McCrary, 112 N.C. App. at 165, 435 S.E.2d at 363, we hold petitioner\u2019s stealing of twenty dollars from an unsuspecting store patron constituted misconduct and that the Commission\u2019s conclusion to this effect was not error.\nPetitioner nonetheless argues the Commission found he had committed \u201crobbery\u201d and insists at length that he \u201cwas charged with committing larceny from the person\u201d and not robbery. Assuming arguendo the Commission attached an erroneous label to petitioner\u2019s actions, the misstatement is de minimis, see State v. Buckom, 328 N.C. 313, 317, 401 S.E.2d 362, 365 (1991) (citation omitted) (larceny from the person differs from robbery only in that the former \u201clacks the requirement that the victim be put in fear\u201d), and surplusage. The essential and relevant conclusion for purposes of the Act is that petitioner engaged in \u201cmisconduct\u201d; as noted above, misconduct includes commission of an unlawful act and theft constitutes an unlawful act, whether accomplished by larceny or robbery.\nRegarding the element of proximate cause, petitioner takes issue with the Commission\u2019s conclusion that \u201cit was reasonably foreseeable to the Petitioner that his illegal acts could result in injury to himself.\u201d However, this Court in Evans pointed out that:\nThe test of foreseeability as an element of proximate cause does not require that the actor should have been able to foresee the injury in the precise manner in which it actually occurred.\nEvans, 101 N.C. App. at 117, 398 S.E.2d at 885 (quoting Adams v. Mills, 312 N.C. 181, 193, 322 S.E.2d 164, 172 (1984)).\nTherefore, petitioner need not necessarily have been able to foresee that his conduct would lead to his being shot, but only that \u201cconsequences of a generally injurious naturef] [were] probable under all the facts as they existed.\u201d Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 233, 311 S.E.2d 559, 565 (1984) (citations omitted). Indeed, in certain instances \u201cthe intervention of wrongful conduct may be the very risk\u201d a person creates through his or her own misconduct, id. at 234, 311 S.E.2d at 565, and such intervention accordingly is foreseeable.\nIn this day and age, considering the circumstances of snatching a twenty-dollar bill from the hand of a customer in a convenience store and attempting to flee the premises with the money and a bottle of soda, only a thief lacking the most basic \u201cordinary prudence\u201d would not reasonably foresee that \u201cconsequences of a generally injurious naturef] [were] probable under all the facts as they existed.\u201d Id. Petitioner\u2019s misconduct thus was a proximate cause of his injury. The Commission therefore did not err either in concluding petitioner\u2019s actions constituted \u201ccontributory misconduct\u201d under the Act and or in its consequent decision to bar pursuant to G.S. \u00a7 15B-ll(b) his claim for recovery of benefits under the Act.\nThe briefs of both parties also discuss whether petitioner\u2019s claim was barred by N.C. Gen. Stat. \u00a7 15B-11(a)(6) (1994), which provides \u201c[a]n award of compensation shall be denied if . . . [t]he victim was participating in a felony or a nontraffic misdemeanor at or about the time that the victim\u2019s injury occurred.\u201d This subsection was added effective 28 February 1994 and retroactively applied to all pending claims or claims \u201cin litigation on or after the date of ratification.\u201d North Carolina Crime Victims Compensation Act, ch. 3, sec. 2, 1994 E. Sess. 5, 6. Petitioner filed his Petition for Review with the Moore County Superior Court on 24 February 1994; his case was therefore in litigation at the time of ratification.\nHowever, we note the question of the applicability of G.S. \u00a7 15B-ll(a)(6) to petitioner\u2019s claim was not addressed in any manner below nor is it set out as an assignment of error in the record on appeal. A contention in an appellant\u2019s brief not based upon an exception or assignment of error will not be reviewed by this Court on appeal. N.C.R. App. P. 10(b). Moreover, we have determined above that petitioner\u2019s claim was properly denied under terms .of the Act less restrictive than provided in the Amendment. It is therefore both violative of our appellate rules as well as unnecessary to consider whether petitioner\u2019s recovery was also barred by G.S. \u00a7 15B-ll(a)(6). Accordingly, we decline to do so.\nAffirmed.\nJudges COZORT and WALKER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Cunningham, Dedmond, Petersen & Smith, by Bruce T. Cunningham, Jr., for petitioner-appellant.", "Attorney General Michael F. Easley, by Assistant Attorney General Robert T. Hargett, for respondent-appellee." ], "corrections": "", "head_matter": "MARK ANTHONY McCRIMMON, Petitioner v. CRIME VICTIMS COMPENSATION COMMISSION, Respondent\nNo. COA94-1029\n(Filed 19 December 1995)\nCriminal Law \u00a7 1666 (NCI4th)\u2014 thief injured during crime\u2014 contributory misconduct \u2014 denial of claim under Victims Compensation Act\nRespondent Commission did not err in concluding that petitioner\u2019s actions constituted \u201ccontributory misconduct\u201d under the North Carolina Crime Victims Compensation Act and in barring pursuant to N.C.G.S. \u00a7 15B-ll(b) petitioner\u2019s claim for recovery of benefits under the Act, where petitioner snatched a twenty-dollar bill from the hand of a customer in a convenience store and was shot by the store proprietor when he attempted to flee the store, and petitioner should have reasonably foreseen that consequences of a generally injurious nature were probable under all the facts as they existed.\nAm Jr. 2d, Criminal Law \u00a7\u00a7 1055-1058.\nMeasure and elements of restitution to which victim is entitled under state criminal statute. 15 ALR5th 391.\nAppeal by petitioner from order entered 5 July 1994 by Judge Howard R. Greeson, Jr. in Moore County Superior Court. Heard in the Court of Appeals 24 May 1995.\nCunningham, Dedmond, Petersen & Smith, by Bruce T. Cunningham, Jr., for petitioner-appellant.\nAttorney General Michael F. Easley, by Assistant Attorney General Robert T. Hargett, for respondent-appellee." }, "file_name": "0144-01", "first_page_order": 178, "last_page_order": 184 }