In re Blough , 2010 Ohio 6712 ( 2010 )

[Cite as In re Blough, 2010-Ohio-6712.]
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: STEPHANIE K. BLOUGH
STEPHANIE K. BLOUGH
Applicant
Case No. V2009-40714
Commissioners:
Karl C. Kerschner, Presiding
Thomas H. Bainbridge
OPINION OF A TWO-
COMMISSIONER PANEL
{1}The appeal before this panel involves whether the applicant, Stephanie K.
Blough, qualifies as a victim of criminally injurious conduct as defined in R.C.
2743.51(C)(1). The majority finds the applicant failed to prove by a preponderance of
the evidence that she sustained personal injury as the result of conduct that posed a
substantial threat of personal injury and is punishable by fine, imprisonment, or death.
Therefore, the applicant’s claim for an award of reparations is denied.
I. Procedural History
{2}On March 19, 2009, the applicant, Stephanie K. Blough, filed a
compensation application as the result of an incident which occurred on June 8, 2008.
On June 30, 2009, the Attorney General issued a finding of fact and decision denying
the applicant’s claim. On July 27, 2009, the applicant submitted a request for
reconsideration. The applicant asserted she was the victim of stalking. In support of
her contention she submitted the affidavit of her husband, Mark Blough.
{3}On September 23, 2009, the Attorney General rendered a Final Decision
finding no reason to modify its initial decision. On September 30, 2009, the applicant
filed a notice of appeal from the September 23, 2009 Final Decision of the Attorney
Case No. V2009-40714 -2- Order
General. Therefore, a hearing was held before this panel of commissioners on
December 3, 2009 at 10:30 A.M.
Case No. V2009-40714 -2- Order
II. Applicant’s Position
{4}The applicant asserts that she was a victim of menacing by stalking, a
violation of R.C. 2903.211. She contends that the Attorney General erred in only
considering the incident of June 8, 2008, but should have taken into consideration the
prior activities and conduct of the offender. Furthermore, the applicant maintains that
she received a five year Consent Agreement for a Civil Stalking or Sexually Oriented
Offense Protection Order on March 5, 2009 on the basis of the offender’s criminal acts.
The applicant argues this pattern of conduct caused her to believe she would suffer
physical harm. Applicant urges this panel to rely on an Order of Protection issued by
Magistrate Flowers in the Stark County Common Pleas Court.
{5}The applicant reasoned her sworn statements establish the criminal offense
of Menacing by Stalking, a first-degree misdemeanor. The offense of Menacing by
Stalking by its very nature qualifies as “criminally injurious conduct.” The applicant
points out that R.C. 2903.211(A)(1) defines menacing by stalking as:
{6}“No person by engaging in a pattern of conduct shall knowingly cause
another person to believe that the offender will cause physical harm to the other
person or cause mental distress to the other person.”
{7}R.C. 2903.211(D)(1) defines pattern of conduct in pertinent as follows: “two
or more actions or incidents closely related in time, whether or not there has been a
prior conviction based on any of those actions or incidents.”
{8}The applicant contends that the activities of the offender meet the definition
of menacing by stalking. Furthermore, the applicant asserts that this panel should rely
on the holdings in Shockey v. Shockey, 2008-Ohio-6797 and Rauser v. Ghaster,
2009-Ohio-4027, for direction in determining that all activities and conduct of the
offender should be considered in determining whether a pattern of conduct exists.
Therefore, the panel should overturn the Final Decision of the Attorney General and find
that the applicant was a victim of criminally injurious conduct.
III. Attorney General’s Position
Case No. V2009-40714 -2- Order
{9}The Attorney General asserts that the applicant has failed to meet her
burden of proof establishing that she was a victim of criminally injurious conduct by a
preponderance of the evidence. The Attorney General investigated the incident by
obtaining a Massillon Police Department report dated June 9, 2008. The report
indicates that the applicant asserted the suspect, Jacob Hinzman, was in her yard on
June 8, 2008. However, the suspect denied he was even in the city of Massillon on the
day in question, and the applicant’s husband could not confirm the suspect’s presence
since he did not “get a good look at him.” After review of the incident the Massillon
Police Department determined there was insufficient evidence to press charges of
criminal trespass or menacing by stalking against the offender. The Attorney General
rejects the applicant’s argument concerning a pattern of conduct since only one
unsubstantiated incident was reported to police. Moreover, the proffered affidavit was
prepared by the applicant’s husband, was never offered in court, and was not subject to
cross-examination. Finally, the parties entered into a consent agreement, wherein the
suspect did not admit to any allegations asserted by the applicant; in fact, he specifically
denied the allegations. The state maintained a mutual restraining order is not evidence
of criminally injurious conduct and the September 23, 2009 Final Decision of the
Attorney General should be affirmed.
IV. Witness Testimony and Argument
{10}The applicant’s attorney, Dennis Yacobozzi, appeared and Assistant
Attorney General Janean Weber appeared on behalf of the state of Ohio.
Case No. V2009-40714 -2- Order
{11}The Attorney General called field investigator Christian Hallows to testify.
Mr. Hallows related he was assigned to investigate the case at bar. He requested any
and all police reports from the Massillon Police Department concerning incidents
involving the
applicant and Mr. Hinzman. He only received one report dated June 9, 2008. No
arrests, charges, fines or imprisonments were imposed as the result of this incident.
{12}Upon cross-examination the witness revealed he never spoke to the
investigating police officer or the applicant or her husband. Mr. Hallows stated that he
relied only on law enforcement to verify the occurrence of the events surrounding this
incident and never contacted the first party witnesses.
{13}The applicant asserted that the burden of proof had been met to establish
that the applicant was a victim of criminally injurious conduct. The applicant urged the
panel to follow the holding in Shockey v. Shockey, 2008-Ohio-6797 which stated: “[t]rial
courts may take every action into consideration even if some actions in isolation would
not seem particularly threatening.” Id. at ¶ 19. Furthermore, the applicant contends
that the pattern of conduct need not be threatening to constitute the offense of
menacing by stalking. According to the applicant, the sworn statement of the applicant,
in the petition for the protection order, and the applicant’s husband’s affidavit
substantiate that the applicant was a victim of criminally injurious conduct. Those
statements should be given great weight since they have not been contradicted and
were the basis for Jacob Hinzman agreeing to the maximum term of five years in the
consent agreement. The only statement submitted by the Attorney General was the
report of the Massillon Police Officer. It was asserted that the two statements offered
by the applicant and her husband outweigh the police officer’s recollections of the
incident, which he did not personally witness. Therefore, the applicant asserts that
criminally injurious conduct has been established.
Case No. V2009-40714 -2- Order
{14}The Attorney General contends menacing by stalking sufficient to qualify as
criminally injurious conduct in the present case has not been established by the
applicant. The incident on June 8, 2008 was not criminally actionable as determined
by the Massillon Police Department. The other incidents mentioned have not been
corroborated by law enforcement or tested by cross-examination. When the
statements contained in the petition for the civil protection order, the consent
agreement, the alleged offender’s statements, the husband’s affidavit, and the police
officer’s statement were considered there was insufficient evidence presented to prove
by a preponderance of the evidence that the applicant was a victim of criminally
injurious conduct. Whereupon the hearing was concluded.
{15}The only evidence offered in support is the box checked on the exparte
order of protection issued by the Stark County Common Pleas Court on February 23,
2009 which states: “The court finds that the Respondent (Jacob Hinzman) has
threatened the protected persons named herein with bodily harm, has caused mental
distress, or has been convicted of or pled guilty to a violation of section 2903.211 of the
Revised Code against the protected persons named in this order.” We find this is
insufficient to prove criminally injurious conduct.
V. Majority Panel’s Determination
{16}After full and careful consideration of all the material contained in the claim
file, the testimony presented at the hearing, and the oral argument of the parties, we
find the applicant has failed to prove by a preponderance of the evidence that she was a
victim of criminally injurious conduct. The applicant concedes in order to establish
criminally injurious conduct it must be shown that the alleged offender engaged in
menacing by stalking. Accordingly, it is the applicant’s burden to prove each element
of the offense by a preponderance of the evidence. The applicant asserts she was
subject to a pattern of conduct which is the basis for menacing by stalking. The
applicant also relies on the affidavit of her husband, Mark Blough. In Mark Bough’s
affidavit he avers how he is fearful for his wife’s safety, but does not mention any
physical or mental problems his wife is experiencing. Moreover, Mr. Blough’s affidavit
Case No. V2009-40714 -2- Order
provides no additional information concerning other incidents and is not contained in the
applicant’s petition for the civil protection order.
{17}The applicant urges the panel to rely on the holdings in Shockey v.
Shockey, 2008-Ohio-6797 and Rauser v. Ghaster, 2009-Ohio-4027. However, both
cases can be distinguished from the case at bar. In Shockey, the menacing by stalking
occurred between ex-spouses. The offender in that case repeatedly harassed his
ex-wife by calling her names and refusing to leave when he dropped off the children
after visitation. He confronted his ex-wife at her friend’s home, threatened to place her
son with children services if she would not personally talk with him, and subsequently
got into a physical altercation with her friend while trying to confront his ex-wife.
Furthermore, the ex-husband admitted he confronted his ex-wife numerous times which
resulted in calls being placed to 911. The ex-husband admitted he had arguments
with, talked loudly to, and made threats to his ex-wife. All these statements were given
under oath.
{18}In the Rauser case, the victims were harassed by their neighbor after they
refused to testify on her behalf in a civil rights suit involving other neighbors. At trial,
witnesses testified that Ghaster exhibited the following behavior toward the Rausers
and their daughter: 1) yelled threats and gestured obscenely; 2) stood in the front of
the home for hours yelling threats and taking photos; 3) repeatedly called on the phone
stating Laurie Rauser would be sorry if she refused to testify on Ghaster’s behalf; and 4)
left a book in the bushes for Rauser’s daughter. Finally, Laurie Rauser testified at the
trial concerning the fear she experienced which resulted in her seeking professional
help and using prescription medication.
Case No. V2009-40714 -2- Order
{19}In the case at bar, it appears that the alleged offender never physically or
verbally confronted the applicant. The alleged threat made in December 2006 to the
applicant and the subsequent incidents that occurred in 2008 are too remote in time and
space to constitute a pattern of conduct as defined in R.C. 2903.211(D)(1). Therefore,
we will only focus on those incidents occurring in 2008. We cannot find, by a
preponderance of the evidence, those incidents collectively would cause the applicant
to believe that she would suffer physical harm. Furthermore, Jacob Hinzman
specifically denied any of the incidents occurred when he signed the consent
agreement.
{20}Officer Kenneth Smith of the Massillon Police Department investigated the
incident. While he was not present on the scene at the time of the occurrence of
these actions, his experience and his ability to interview all the parties in an objective
manner should not be discounted. After listening to both sides and bringing the parties
together to observe their demeanor, the officer concluded no crime had been
committed.
{21}We reject the argument set forth by the applicant that the pattern of conduct
need not be threatening to constitute menacing by stalking and, subsequently, criminally
injurious conduct. The basis of criminally injurious conduct is that the conduct must
pose a threat of personal injury or death. If the pattern of conduct is not threatening
then, consequently, criminally injurious conduct cannot be found.
{22}Finally, assuming arguendo that the applicant has proven that the conduct
was punishable by fine, imprisonment or death, the applicant failed to prove she
suffered any physical or mental injury as the result of the conduct. A review of the
compensation application, the request for reconsideration, the applicant’s brief, the
consent agreement, the petition for civil stalking or sexually oriented offense protection
order, and the police report are devoid of any evidence of physical or mental harm the
applicant suffered. There is no evidence she ever sought professional treatment or
help and she has not provided this panel with any statement concerning the mental or
Case No. V2009-40714 -2- Order
physical suffering she sustained as a result of the alleged offender’s conduct.
Therefore, the September 23, 2009 Final Decision of the Attorney General is affirmed.
_______________________________________
KARL C. KERSCHNER
Presiding Commissioner
_______________________________________
THOMAS H. BAINBRIDGE
Commissioner
Case No. V2009-40714 -2- Order
Lloyd Pierre-Louis, Commissioner, Dissenting Opinion:
{23}I respectfully dissent. I find that the applicant has proven by a
preponderance of the evidence that she was a victim of criminally injurious conduct as
defined by R.C. 2743.51(C)(1). Unlike my colleagues, I believe that applicant has
satisfied both prongs of the test to establish criminally injurious conduct. I concur with
the majority’s finding that the offender engaged in conduct which was punishable by
fine, imprisonment or the death penalty. However, I contend that the evidence
contained in the claim file established that the conduct posed a substantial threat of
personal injury or death.
{24}I believe the majority of the panel discounts the applicant’s petition for a
civil protection order filed with the Stark County Common Pleas Court. Under the
penalty for falsification of documents and perjury, the applicant swore or affirmed that
Mr. Hinzman “will cause [her] physical harm or cause (or has caused) mental distress.”
This sworn statement has not been rebutted by any evidence presented by the Attorney
General. Furthermore, Magistrate Flowers issued an ex parte Order of Protection
which determined Mr. Hinzman “has threatened the protected persons named herein
with bodily harm, has caused mental distress* * *.” Finally, on March 5, 2009, the
parties entered into a consent agreement whereby Mr. Hinzman agreed to stay away
from the applicant until March 5, 2014, a period of five years. None of this information
has been refuted or rebutted by the Attorney General.
{25}I agree with the majority that the factual scenarios presented in Shockey v.
Shockey, 2008-Ohio-6797 and Rauser v. Ghaster, 2009-Ohio-4027 may be
distinguished from the case at bar. However, applicant did not cite those cases based
on the facts presented, but rather as a basis for determining the relationship between
unrelated acts. These acts, when taken as a whole constitute menacing by stalking.
Case No. V2009-40714 -2- Order
Whereas, standing independently, they may not constitute menacing by stalking. In
Shockey, the Fifth District Court of Appeals cited Guthrie v. Long, 2005-Ohio-1541 and
Miller v. Franciso, 2003-Ohio-1978, for the proposition that a “[t]rial court may take
every action into consideration, even if some actions in isolation would not seem
particularly threatening.” In Rauser, the Eighth District Court of Appeals held that
threats of physical harm are not necessary to constitute a violation of R.C. 2903.211(A),
rather “the test is whether the offender, by engaging in a pattern of conduct, knowingly
caused another to believe the offender would cause physical harm to him or her.
Kramer v. Kramer, Seneca App. No. 13-02-03, 2002-Ohio-4383.” Rauser at ¶ 21.
Therefore, the perception of the victim is relevant in determining the seriousness of the
offender’s actions.
{26}In the case at bar, I believe the applicant has proven by a preponderance of
the evidence, based upon her prior familiarity with Mr. Hinzman in a working
relationship, what he was capable of doing. While to an outside observer, Mr.
Hinzman’s actions may appear harmless, unrelated or even coincidental, based upon
the applicant’s prior knowledge and experience she considered these actions to convey
a threat of personal injury. The applicant affirmatively acted upon her feelings by
seeking a civil protection order against Mr. Hinzman. She convinced Magistrate
Flowers of her fears, causing the magistrate to grant her a civil protection order.
Furthermore, we should defer to the judgment of the magistrate who was able to view
the credibility and veracity of the applicant. Felton v. Felton, 79 Ohio St. 3d 34,
1997-Ohio-302, 679 N.E. 2d 679 paragraph two of the syllabus.
{27}Finally, the unrefuted evidence contained in the affidavit of the applicant’s
husband, Mark Blough, expressed his fearfulness for his wife’s safety.
Case No. V2009-40714 -2- Order
{28}Based upon the totality of the evidence presented I find the applicant has
met her burden and has proven by a preponderance of the evidence she was a victim of
criminally injurious conduct as defined in R.C. 2743.51(C)(1).
______________________________________
LLOYD PIERRE-LOUIS
Commissioner
Case No. V2009-40714 -2- Order
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: STEPHANIE K. BLOUGH
STEPHANIE K. BLOUGH
Applicant
Case No. V2009-40714
Commissioners:
Karl C. Kerschner, Presiding
Thomas H. Bainbridge
ORDER OF A THREE-
COMMISSIONER PANEL
IT IS THEREFORE ORDERED THAT
{29}1) The September 23, 2009 decision of the Attorney General is
AFFIRMED;
{30}2) The claim is DENIED and judgment is rendered for the state of Ohio;
Case No. V2009-40714 -2- Order
{31}3) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
KARL C. KERSCHNER
Presiding Commissioner
_______________________________________
THOMAS H. BAINBRIDGE
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2010\Jan - Aug 2010\V2009-40714.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Stark County Prosecuting Attorney and to:
Filed 8-19-10
Jr. Vol. 2276, Pg. 47
Sent to S.C. Reporter 10-6-11