In re McMurray , 2011 Ohio 4353 ( 2011 )

[Cite as In re McMurray, 2011-Ohio-4353.]
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: KEVIN D. MCMURRAY
DOROTHY CONLEY
SANDRA HAMM
RONDA L. MCMURRAY
JEREMY MOORE
Applicants
Case No. V2010-50582
Commissioners:
Susan G. Sheridan, Presiding
Karl C. Kerschner
Randi M. Ostry
ORDER OF A THREE-
COMMISSIONER PANEL
{1}On December 3, 2009, the applicants filed a compensation application as
the result of the death of Kevin McMurray. On March 18, 2010, the Attorney General
issued a finding of fact and decision determining that Kevin McMurray qualified as a
victim of criminally injurious conduct. An award was granted in the amount of
$6,843.03 for funeral expense which was distributed as follows:
Denzer-Farison-Hottinger & Snyder Funeral Home, $2,860.03; Applicant, Jeremy
Moore, $1,483.00; applicant, Dorothy Conley, $1,000.00; and applicant, Sandra Hamm,
$1,500.00. Applicant Ronda McMurray submitted a claim for dependent’s economic
loss, however, the Attorney General denied this claim due to the lack of documentation.
{2}On April 16, 2010, applicant Ronda McMurray submitted a request for
reconsideration. On May 17, 2010, the Attorney General rendered a Final Decision
finding no reason to modify the initial decision. On June 17, 2010, applicant Ronda
Case No. V2010-50582 - 2 - ORDER
McMurray filed a notice of appeal from the May 17, 2010 Final Decision of the Attorney
General.
{3}On September 27, 2010, the Attorney General filed a brief. The Attorney
General asserted that the applicant failed to prove, by a preponderance of the evidence,
that she was receiving financial support from the decedent prior to his death. The
Attorney General’s investigation revealed that, according to the Social Security
Administration the decedent had last worked in 2004 and received an annual income of
$8,684.27. While the decedent applied for benefits from the Social Security
Administration his claim was rejected twice and was on appeal with a hearing not
expected until 2012. The Attorney General also submitted the applicant’s answer to
question 13 on a letter the Attorney General submitted to the applicant on December 4,
2009. The question and answer stated as follows:
“ 13. Please provide copies of the victim’s payroll earnings statements for six (6) weeks
prior to the injury and/or a copy of the tax return for the year prior to the injury. Provide
the complete name and address of the employer the victim either was working for at the
time of the injury or the last employer worked for. Please document all household
income at the time of the incident, including SSI/SSD benefits. [Answer] Kevin
McMurray’s dad Lester McMurray paid for all bills ex.”
{4}The Attorney General contends that the uncorroborated statements of the
applicant are insufficient to support a claim for dependent’s economic loss. The
Attorney General cites In re Barber, V78-3915jud (10-9-80), for this proposition.
Finally, In re Eader (1982), 20 Ohio Misc. 17 is cited to emphasize that the burden of
proof rests firmly on the applicant to prove her case. The Attorney General asserts the
applicant has failed to do so in this case. The applicant also indicated that the
decedent had a minor child, Ashley Rice. However, the Attorney General’s
investigation revealed that this child is receiving Social Security Survivor benefits of
$463.00 per month which are currently being paid to the Marion Area Counseling
Center. The Attorney General noted that if evidence can be submitted to show the
Case No. V2010-50582 - 3 - ORDER
decedent was providing monthly financial support in excess of the $463.00, the filing of
a supplemental compensation application would be appropriate.
{5}On October 19, 2010, the Attorney General submitted documentation from
the Department of Jobs and Family Services concerning the applicant. The documents
reveal that in 2007 Kevin, the decedent, and Ronda, the applicant, sought the
assistance of Jobs and Family Services. Kevin stated both were unemployed and they
lived with his father. The father expected $300.00 per month for rent however, this was
not paid since neither had a job. The records indicate Kevin was approved for food
stamps, but was subsequently incarcerated. The records revealed Kevin had no
income, paid no rent or utilities, and all expenses were paid by his father. Although
Kevin was approved for food stamps, Ronda was not since she had been determined
ineligible. By 2008, Kevin remained unemployed, and not financially contributing to
the support of his wife Ronda. A remark in the case notes file dated 3/10/2009 states:
“He (Kevin) stated he hadn’t worked since he died. And then explained that he
had a massive heart attack in 2005 and is unable to work now due to the stint
they put in. I let Kevin know that he would be exempt from participating if he
could get a Dr. statement stating that he was unable to work. He said that he
wouldn’t be here except his wife (Ronda) was making him come. We talked
about his felony record and he stated that he was in prison and has multiple
felonies for attempted murder and weapon charges. Stated he didn’t like his
step son and that he wanted to push him out of the window. Stated that these
requirements were going to put him back into a straight jacket.”
{6}The notation in the case notes dated 10/28/09 stated “Kevin McMurray died
on 10-25-09.” From a review of the records it appears that Kevin McMurray received
food stamps for himself from Jobs and Family Services, between $155.00 to $162.00
per month.
{7}On November 8, 2010, the applicant submitted a brief. The applicant
asserts that she was supported “100%” by the decedent during their 17 year marriage.
Case No. V2010-50582 - 4 - ORDER
The applicant attached a notarized letter from her mother which states she is now
supporting the applicant since the death of Kevin McMurray. The applicant argues that
she suffered dependent’s economic loss based on the loss of food stamps and the rent
fee arrangement she received from Kevin through his father.
{8}On January 5, 2011, a hearing was held before this panel of commissioners
at 11:30 A.M. The applicant’s attorney Byron Potts was present, while Assistant
Attorney General Georgia Verlaney represented the state of Ohio. Both parties stated
they wished to rest on their briefs and the hearing was concluded.
{9}R.C. 2743.51(D) states:
“(D) ‘Dependent’ means an individual wholly or partially dependent upon the
victim for care and support, and includes a child of the victim born after the
victim’s death.”
{10}R.C. 2743.51(E) states:
“(E) ‘Economic loss’ means economic detriment consisting only of allowable
expense, work loss, funeral expense, unemployment benefits loss, replacement
services loss, cost of crime scene cleanup, and cost of evidence replacement.
If criminally injurious conduct causes death, economic loss includes a
dependent’s economic loss and a dependent’s replacement services loss.
Noneconomic detriment is not economic loss; however, economic loss may be
caused by pain and suffering or physical impairment.”
{11}R.C. 2743.51(I) in pertinent part states:
“(I) ‘Dependent’s economic loss’ means loss after a victim’s death of
contributions of things of economic value to the victim’s dependents, not
including services they would have received from the victim if the victim had not
suffered the fatal injury, less expenses of the dependents avoided by reason of
the victim’s death.”
{12}A judge of the Court of Claims stated:
Case No. V2010-50582 - 5 - ORDER
“*** as a matter of law *** the weight of inferences of dependency and
consequent entitlement to a finding of economic loss and/or dependent’s
replacement services loss based solely on a self serving claimant’s affidavit,
which is (a) [u]nsupported by competent corroborative testimony, documents or
other probative facts; and/or (b) [w]here the record contains inconsistent and/or
contradictory facts, which are unexplained; is not sufficient, as a matter of law,
to support a finding of dependency on which an award can be based.” In re
Barber, V78-3915jud (10-9-80).
{13}“The only way to prevent fraud and abuse of benefits available under Crime
Victim’s Compensation Program, is to demand sufficient evidence of economic
loss***although it may cause inconvenience, the only reliable method of establishing the
alleged economic loss is to place the burden squarely on those who will benefit from the
award. Only in this manner may we be guaranteed continued integrity and equitable
disbursement of the reparations rotary fund.” In re Eader (1982), 70 Ohio Misc. 17, 21,
quoting In re Martin, V77-1308jud (8-23-79).
{14}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.”
{15}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.”
{16}From review of the case file and the briefs of the parties, we find the
applicant has failed to prove, by a preponderance of the evidence, that she incurred
dependent’s economic loss as the result of Kevin McMurray’s death. A review of the
file revealed the couple was staying rent free at Kevin’s father’s apartment. The
applicant failed to produce a single document which evidenced that the decedent paid
Case No. V2010-50582 - 6 - ORDER
rent to his father and the file is devoid of even a description of the “odd jobs” Kevin
supposedly performed for his father in lieu of rent. A review of the case notes from
Jobs and Family Services reveals the food stamps were intended for Kevin’s personal
use. Records reflect the applicant had sanctions placed against her so she was
ineligible to receive benefits. Accordingly, the applicant has failed to prove, by a
preponderance of the evidence, that she incurred dependent’s economic loss.
Therefore, the May 17, 2010 decision of the Attorney General is affirmed.
IT IS THEREFORE ORDERED THAT
{17}1) The May 17, 2010 decision of the Attorney General is AFFIRMED;
{18}2) This claim is DENIED and judgment is rendered in favor of the state of
Ohio;
{19}3) Costs are assumed by the court of claims victims of crime fund.
_______________________________________
SUSAN G. SHERIDAN
Presiding Commissioner
_______________________________________
KARL C. KERSCHNER
Commissioner
_______________________________________
RANDI M. OSTRY
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2011\March 2011\V2010-50582 McMurray.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Marion County Prosecuting Attorney and to:
Case No. V2010-50582 - 7 - ORDER
Filed 3-9-11
Jr. Vol. 2278, Pgs. 26-32
Sent to S.C. Reporter 8-30-11