In re Blough , 2010 Ohio 6706 ( 2010 )

[Cite as In re Blough, 2010-Ohio-6706.]
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
Judge Joseph T. Clark
DECISION
{1}This matter came on to be considered upon applicant’s appeal from the
August 19, 2010 order issued by the panel of commissioners. The panel’s
determination affirmed the final decision of the Attorney General, which denied
applicant’s claim for an award of reparations based upon the finding that applicant
failed to prove that she was a victim of criminally injurious conduct.
{2}R.C. 2743.52(A) places the burden of proof on an applicant to satisfy the
Court of Claims Commissioners that the requirements for an award have been met by a
preponderance of the evidence. In re Rios (1983), 8 Ohio Misc.2d 4, 8 OBR 63, 455
N.E.2d 1374. The panel found, upon review of the evidence, that applicant failed to
present sufficient evidence to meet her burden.
{3}The standard for reviewing claims that are appealed to the court is established
by R.C. 2743.61(C), which provides in pertinent part: “If upon hearing and
consideration of the record and evidence, the judge decides that the decision of the
panel of commissioners is unreasonable or unlawful, the judge shall reverse and vacate
the decision or modify it and enter judgment on the claim. The decision of the judge of
the court of claims is final.”
Case No. V2009-40714 - 2 - DECISION
{4}Applicant asserts that the decision of the panel of commissioners was
unreasonable and unlawful in finding that applicant failed to prove that she was a victim
of criminally injurious conduct. According to applicant, the alleged offender had acted
in a threatening manner on several occasions and he came to her residence on June 9,
2008. Applicant reported the June 9, 2008 incident to the Massillon Police
Department; however, the investigating officers determined that there was insufficient
evidence to charge the alleged offender with either criminal trespass or menacing by
stalking. Applicant subsequently obtained an ex parte civil protection order that was
issued by a magistrate of the Stark County Court of Common Pleas. Applicant
contends that order of protection and the evidence she submitted to the court was
sufficient to show that the alleged offender committed the offense of menacing by
stalking pursuant to R.C. 2903.211 and that the offense necessarily constitutes
criminally injurious conduct.
{5}The Attorney General asserts that applicant failed to prove by a
preponderance of the evidence that the conduct of the alleged offender was criminally
injurious conduct. According to the Attorney General’s investigation, the Massillon
Police Department issued a report which stated that the alleged offender denied that he
entered upon applicant’s property on June 9, 2008, and applicant’s husband was
unable to confirm the suspect’s presence.
{6}At the judicial hearing, applicant’s attorney argued that the panel’s decision
was contrary to R.C. 2903.211(D) and case law that has interpreted the statute.
Specifically, applicant contends that applicant suffered sufficient mental distress to
support a finding that she was a victim of the offense of menacing by stalking.
However, the issue before the court is whether applicant qualifies as a victim of
criminally injurious conduct pursuant to R.C. 2743.51(C)(1) which provides, in relevant
part:
{7}“(C) ‘Criminally injurious conduct’ means one of the following:
Case No. V2009-40714 - 3 - DECISION
“(1) For the purposes of any person described in division (A)(1) of this section,
any conduct that occurs or is attempted in this state; poses a substantial threat of
personal injury or death; and is punishable by fine, imprisonment, or death * * *.”
{8}The panel noted in its decision that the alleged offender had never physically
or verbally confronted applicant. The panel determined that evidence in the record
was insufficient to prove by a preponderance of the evidence that the alleged incidents
collectively would cause applicant to believe that she would suffer physical harm.
Although the panel acknowledged that a magistrate had found good cause to issue an
ex parte civil protection order against the alleged offender, the panel concluded that
applicant had failed to present any evidence to show either that she suffered any
physical or mental harm or that she sought professional treatment for such injury.
{9}There is sufficient information in the claim file to support the panel’s
determination that applicant failed to prove that she suffered any physical or mental
harm. Absent proof that the alleged conduct posed a substantial threat of personal
injury or death, applicant cannot sustain her burden of proving that she was a victim of
criminally injurious conduct. Upon review of the file in this matter, the court finds that
the panel of commissioners was not arbitrary in finding that applicant did not show by a
preponderance of the evidence that she was entitled to an award of reparations.
{10}Based on the evidence and R.C. 2743.61, it is the court’s opinion that the
decision of the panel of commissioners was reasonable and lawful. Therefore, this
court affirms the decision of the panel, and hereby denies applicant’s claim.
JOSEPH T. CLARK
Judge
Case No. V2009-40714 - 4 - DECISION
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
Judge Joseph T. Clark
ORDER
Upon review of the evidence, the court finds the order of the panel of
commissioners must be affirmed and applicant’s appeal must be denied.
IT IS HEREBY ORDERED THAT:
{11}1) The order of August 19, 2010, (Jr. Vol. 2276, Page 47) is approved,
affirmed and adopted;
{12}2) This claim is DENIED and judgment entered for the State of Ohio;
{13}3) Costs assumed by the reparations fund.
JOSEPH T. CLARK
Judge
Case No. V2009-40714 - 5 - DECISION
AMR/cmd
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 12-1-10
Jr. Vol. 2277, Pg. 117
Sent to S.C. Reporter 9-21-11