In re Estrada

[Cite as In re Estrada, 2012-Ohio-4682.]
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: PASCUAL O. ESTRADA
NORA M. MAFFEI
Applicant
Case No. V2011-60395
Commissioners:
Necol Russell-Washington, Presiding
Susan G. Sheridan
E. Joel Wesp
ORDER OF A THREE-COMMISSIONER PANEL
{¶1} On February 19, 2010, the applicant, Nora Maffei, filed a compensation application
as the result of the death of her father Pascual Estrada. On June 4, 2010, the Attorney
General issued a finding of fact and decision determining that Pascual Estrada was not
a victim of criminally injurious conduct. On March 17, 2011, the applicant submitted a
request for reconsideration. On April 18, 2011, the Attorney General rendered a Final
Decision finding no reason to modify the initial decision. On April 28, 2011, the
applicant filed a notice of appeal from the Final Decision of the Attorney General
rendered on April 18, 2011. Hence, a hearing was held before this panel of
commissioners on February 8, 2012 at 11:50 A.M.
{¶2} Attorney Kristin Bryant appeared on behalf of the applicant, while Assistant
Attorney General Megan Hanke represented the state of Ohio.
{¶3} The applicant argued that the evidence supports that Pascual Estrada was a
victim of criminally injurious conduct. The applicant contends Mr. Estrada was in the
care of his son Pascual Estrada, Jr. The applicant related during this period there were
incidents of identity theft and fraud, as well as a lack of medical care offered to Mr.
Estrada, Sr. During this period there also was an investigation by police and Adult
Case No. V2011-60395 - 2 - ORDER
Protective Services that Mr.Estrada, Sr. was not being cared for properly. However,
the lack of criminal investigation and/or prosecution should not bar this panel from
finding that Mr. Estrada, Sr. was a victim of criminally injurious conduct and that his
death resulted from this lack of care.
{¶4} The Attorney General asserts that the applicant has failed to prove that Mr.
Estrada, Sr. was a victim of criminally injurious conduct. The applicant has the burden
of proof with respect to this issue and the uncorroborated assertions of the applicant are
insufficient to meet this burden. Furthermore, the police reports obtained from the
Lorain Police Department mention only incidents of identity theft and fraud, acts which
do not qualify as criminally injurious conduct under the statute. The police reports are
silent with respect to the allegations that the decedent fell, was denied medical
treatment, or suffered physical injury at the hands of Estrada, Jr. The investigation by
Adult Protective Services was unsubstantiated with regard to finding any incidents of
physical abuse to Mr. Estrada, Sr.
{¶5} In rebuttal, the applicant stated that simply because Adult Protective Services
found the complaint of physical abuse unsubstantiated does not foreclose this panel
from finding Mr. Estrada, Sr. was a victim of criminally injurious conduct. The applicant
contends her statement to police that her father had fallen a few times and her brother
would not take her father to the hospital establish that she has met her burden of proof.
Whereupon, the hearing was concluded.
{¶6} R.C. 2743.51(C)(1) in pertinent part states:
a. “(C) Criminally injurious conduct means one of the following:
b. “(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, or would be so punishable but for the fact that the
person engaging in the conduct lacked capacity to commit the crime under
the laws of this state.”
Case No. V2011-60395 - 3 - ORDER
{¶7} The applicant must prove criminally injurious conduct by a preponderance of the
evidence. In re Rios (1983), 8 Ohio Misc. 2d 4.
{¶8} The applicant must produce evidence which furnishes a reasonable basis for
sustaining her claim. If the evidence furnishes a basis for only a guess, among
different possibilities, as to any essential issue in the case, she fails to sustain the
burden as to such issue. In re Staten, V2011-60051tc (5-27-11) citing Landon v. Lee
Motors, Inc. (1954), 161 Ohio St. 82.
{¶9} The uncorroborated statement of the applicant does not constitute sufficient proof,
by a preponderance of the evidence, to establish the criminally injurious conduct. In re
Minadeo, V79-3435jud (10-31-80).
{¶10} Identity theft does not pose a substantial threat of personal injury or death,
accordingly it does not qualify as criminally injurious conduct. In re Tittl,
V2006-20909tc (2-16-07), 2007-Ohio-1405.
{¶11} A person who sustains severe emotional harm as the result of systemic forgery
and theft is not a victim of criminally injurious conduct. In re Dowdell, V2002-50749tc
(9-30-02).
{¶12} The applicant must prove criminally injurious conduct by a preponderance of the
evidence. In re Rios (1983), 8 Ohio Misc. 2d 4.
{¶13} 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.”
{¶14} 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.”
{¶15} From review of the case file and with full and careful consideration given to the
arguments of respective counsel, we find that applicant has failed to prove by a
Case No. V2011-60395 - 4 - ORDER
preponderance of the evidence that her father Pascual Estrada was a victim of
criminally injurious conduct. The applicant has failed to meet her burden of proof. We
have reviewed the police reports contained in the case file and while the applicant
correctly stated that she notified the police concerning the lack of medical treatment, the
police’s request for a follow-up interview with Mr. Estrada, Sr. was never granted.
Even though the allegations were investigated by Adult Protective Services it was
determined the complaints of physical abuse were unsubstantiated.
{¶16} Since case law is clear that one cannot be found to be a victim solely on
economic crimes committed against an individual and the applicant has failed to present
sufficient evidence to prove, by a preponderance of the evidence, that her father was a
victim of criminally injurious conduct this claim must be denied.
{¶17} Accordingly, the April 18, 2011 decision of the Attorney General is affirmed.
{¶18} IT IS THEREFORE ORDERED THAT
{¶19} The April 18, 2011 decision of the Attorney General is AFFIRMED;
{¶20} This claim is DENIED and judgment is rendered for the state of Ohio;
{¶21} Costs are assumed by the court of claims victims of crime fund.
_______________________________________
NECOL RUSSELL-WASHINGTON
Presiding Commissioner
_______________________________________
SUSAN G. SHERIDAN
Commissioner
Case No. V2011-60395 - 5 - ORDER
_______________________________________
E. JOEL WESP
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\March - May 2012\V2011-60395 Estrada.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Cuyahoga County Prosecuting Attorney and to:
Filed 3-13-12
Jr. vol. 2282, Pgs. 136-140
Sent to S.C. reporter 10-9-12