In re Henderson

[Cite as In re Henderson, 2012-Ohio-6364.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
IN RE: CAROLYN E. HENDERSON
CAROLYN E. HENDERSON
Applicant
Case No. V2011-60930
Judge Alan C. Travis
DECISION
{¶1} This matter came on to be considered upon the Attorney General’s appeal from
the June 27, 2012 order issued by the panel of commissioners. The panel’s
determination reversed the final decision of the Attorney General, which denied
applicant’s claim for an award of reparations based upon the finding that
applicant did not qualify as a victim of criminally injurious conduct pursuant to
R.C. 2743.51(C)(1).
{¶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, 8 Ohio Misc.2d 4 (1983). The
panel found, upon review of the evidence, that applicant presented 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
Case No. V2011-60930 - 2 - DECISION
decision of the judge of the court of claims is final.”
{¶4} The Attorney General asserts that the decision of the panel of commissioners was
unreasonable and unlawful in finding that applicant proved by a preponderance
of the evidence that she was a victim of criminally injurious conduct. Applicant
asserts that the alleged offender, a Kroger employee, had acted in a threatening
manner when he became agitated after applicant requested assistance while she
was attempting to pay for her groceries. At the panel hearing, applicant testified
that the employee spun the carousel upon which her groceries had been placed,
causing the groceries to fall to the floor. Applicant testified that the employee
then walked to the cash register and began opening and closing drawers in a
disruptive manner. According to applicant, the employee threw boxes which hit
a beam that was located between her and the employee, propelling dust and
metal clippings into her eyes. Applicant subsequently sought treatment for her
eyes at a hospital emergency room and a physical examination revealed that “no
foreign material” was detected. Applicant testified that she reported the incident
to the Mansfield Police Department; however, the panel noted in its decision that
neither an incident report nor a police report was presented at the hearing.
{¶5} Based upon the evidence, the panel concluded that applicant proved by a
preponderance of the evidence that the employee’s conduct constitutes
criminally injurious conduct. The panel found that applicant’s testimony and the
statements in the medical records that are attributed to her were sufficient to
show that she qualifies as a victim of criminally injurious conduct pursuant to
R.C. 2743.51(C)(1) which provides, in relevant part:
{¶6} “(C) ‘Criminally injurious conduct’ means one of the following:
{¶7} “(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 * * *”
Case No. V2011-60930 - 3 - DECISION
{¶8} R.C. 2903.13 [Assault], provides, in pertinent part:
{¶9} “(A) No person shall knowingly cause or attempt to cause physical harm to another
or to another’s unborn.
{¶10} “(B) No person shall recklessly cause serious physical harm to another or to
another’s unborn. * * *”
{¶11} As the panel noted in its decision, the court has previously held that “the
uncorroborated statement of the applicant does not constitute sufficient proof, by
a preponderance of the evidence, to establish the criminally injurious conduct
occurred.” In re Warren, V2008-30014tc (9-5-08), citing In re Minadeo,
V79-3435jud (10-31-80).
{¶12} Although the panel found applicant’s testimony to be credible, applicant’s
statements are inconsistent regarding whether the employee intended to throw
boxes at her. The court notes that plaintiff informed her physician that the
employee “threw a box down near her, and dust and debris got in her eyes.”
Indeed, applicant was not struck by a thrown box, rather she testified that a box
or boxes struck a beam that separated her from the employee. The court finds
that such conduct was, at most, reckless and did not subject applicant to a risk of
serious harm. Absent proof that the employee’s 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.
{¶13} Based on the evidence and R.C. 2743.61, it is the court’s opinion that the
decision of the panel of commissioners was unreasonable and unlawful.
Therefore, this court reverses the decision of the three-commissioner panel, and
hereby denies applicant’s claim.
{¶14} Upon review of the evidence, the court finds the order of the panel of
commissioners must be reversed.
{¶15} IT IS HEREBY ORDERED THAT:
Case No. V2011-60930 - 4 - DECISION
{¶16} 1) The order of June 27, 2012, (Jr. Vol. 2283, Pages 78-84) is reversed;
{¶17} 2) This claim is DENIED and judgment entered for the State of Ohio;
{¶18} 3) Costs assumed by the reparations fund.
ALAN C. TRAVIS
Judge
004
A copy of the foregoing was personally served upon the Attorney General
and sent by regular mail to Richland County Prosecuting Attorney and to:
Filed 10-10-12
Jr. Vol. 2284 Pg. 30
Sent to S.C. reporter 7-19-13