In re Henderson

[Cite as In re Henderson, 2012-Ohio-4848.]
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
Commissioners:
E. Joel Wesp, Presiding
Susan G. Sheridan
Necol Russell-Washington
ORDER OF A THREE-COMMISSIONER PANEL
{¶1} On July 18, 2011, applicant, Carolyn Henderson, filed a compensation application
as the result of an incident which occurred on July 15, 2009. On August 16, 2011, the
Attorney General issued a finding of fact and decision denying the applicant’s claim
because she did not qualify as a victim of criminally injurious conduct pursuant to R.C.
2743.51(C)(1). On September 16, 2011, the applicant filed a request for
reconsideration. On November 14, 2011, the Attorney General rendered a Final
Decision finding no reason to modify the initial decision.
{¶2} On December 16, 2011, the applicant filed a notice of appeal from the
November 14, 2011 Final Decision of the Attorney General. Hence, this claim was
heard before this panel of commissioners on March 8, 2012 at 9:55 A.M.
{¶3} The applicant, Carolyn Henderson and her counsel, Byron Potts, appeared at the
hearing, while Assistant Attorneys General Gwynn Kinsel and Melissa Montgomery
represented the state of Ohio.
{¶4} The only issue on appeal is whether the applicant qualifies as a victim of criminally
injurious conduct. After brief opening statements, the applicant, Carolyn Henderson
took the witness stand. The applicant stated on July 15, 2009, she was shopping at
Case No. V2011-60930 - 2 - ORDER
Kroger at approximately 12:30 A.M., while checking out at the U-Scan a Kroger
employee approached her and began knocking her groceries on the floor. As she
attempted to finish her grocery checkout, the employee again began to interfere in a
disruptive manner. The applicant stated she asked the employee for assistance but he
became agitated, and started throwing boxes at her. A beam separated her from the
employee and when the boxes hit the beam small metal clippings and dust were
propelled into her eyes. Mrs. Henderson testified that she experienced fear and
apprehension at the time of the incident. She stated she believed another employee
reported the incident to Kroger management.
{¶5} At that point she left the store and went to the emergency room. She recalled a
doctor numbed and rinsed her eyes and directed her to contact the police. The
applicant was shown Applicant’s Exhibit 1, a call report from the Mansfield Police
Department dated July 15, 2009. She identified the report and stated the call was
made to police as the result of the assault which occurred at Kroger.
{¶6} The applicant was then presented with Applicant’s Exhibit 2, an adult triage report.
The applicant read the report concerning the incident at Kroger and that she had dust in
her eyes. Finally, the applicant was shown Applicant’s Exhibit 3, a letter from Juan
Penhos, M.D., dated July 27, 2009. The letter outlined the incident at Kroger and
stated that as a result of this incident she got dust in her eyes.
{¶7} Upon cross-examination, the applicant stated that another store employee
witnessed the incident. The applicant conceded she did not speak to the store
manager or file an incident report with Kroger, nor did she make any follow up visits.
{¶8} The Attorney General introduced State’s Exhibit A, a Mansfield Hospital
Emergency Department Report. The Attorney General directed the applicant to read
the section of the report entitled “History of Present Illness.” The applicant read the
following:
a. “Patient was at the grocery store when one of the clerks apparently
moved a bunch of boxes and the dust from the boxes went into her eyes.
Case No. V2011-60930 - 3 - ORDER
None of the boxes struck her. Patient stated she got some dust in her
eyes, which caused some irritation and she presented here for
evaluation.”
{¶9} The applicant revealed that the doctor found material in her eyes when he put her
under a machine. He informed her, her eyes would need to be numbed so he could
rinse them. The Attorney General then directed the applicant to read the last sentence
of the section entitled “Physical Examination.” Applicant read, “There is no foreign
material seen.”
{¶10} The Attorney General directed the applicant’s attention to Applicant’s Exhibit 1.
The applicant read the following: “Wanted to speak with an officer reference dirt in her
eyes. The applicant stated an officer appeared at the hospital and she informed the
officer what had happened at Kroger, but it did not appear to her that the officer ever
memorialized her comments.”
{¶11} On redirect examination, the applicant stated she had the impression that Kroger
was aware of the incident by the actions of the other employees. Furthermore, the
applicant was never advised that she should file an incident report.
{¶12} The applicant’s attention was directed to State’s Exhibit A. The applicant does
not know who typed this document nor was she allowed to review this document at the
time it was prepared. She reiterated that material was in her eyes which had to be
rinsed out.
{¶13} Finally, the applicant stated, based on the Attorney General’s inquiry, that to the
best of her knowledge no one had been criminally charged as the result of this incident.
{¶14} Upon questioning by the panel of commissioners the applicant clarified the
conduct of the Kroger employee at the time of the incident. She related that her first
encounter with the employee was when he spun the carousel upon which her groceries
were resting, flinging them onto the floor. The applicant asserted her request for
assistance seemed to trigger his agitated behavior. At that point he went over to the
Case No. V2011-60930 - 4 - ORDER
cash register and began opening and closing drawers in a disturbing manner. She
then discussed how she exited the store and the frightening nature of the experience.
{¶15} The applicant acknowledged that after this encounter she went to the emergency
room to receive treatment for her eyes. The applicant described her medical treatment
since the events of July 15, 2009. Whereupon, the applicant’s testimony was
concluded.
{¶16} In closing, the Attorney General argued that the uncorroborated statements of the
applicant are insufficient to prove she was a victim of criminally injurious conduct. In
the case at bar there is no corroborating evidence, no incident report from Kroger, and
no police report. Accordingly, the Attorney General’s Final Decision should be
affirmed.
{¶17} The applicant averred that the burden of proving criminally injurious conduct had
been met. The conduct was corroborated by the evidence submitted at the hearing.
Accordingly, the applicant’s prays that the Attorney General’s Final Decision is
reversed.
{¶18} 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...”
{¶19} The applicant must prove criminally injurious conduct by a preponderance of the
evidence. In re Rios, 8 Ohio Misc. 2d 4, 455 N.E. 2d 1374 (Ct. of Cl. 1983).
{¶20} Black’s Law Dictionary Eighth Edition (1999) defines prima facie as “the
establishment of a legally required rebuttable presumption...enough evidence to allow
the fact-trier to infer the fact at issue and rule in the party’s favor.”
{¶21} 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
Case No. V2011-60930 - 5 - ORDER
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.”
{¶22} 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.”
{¶23} The credibility of witnesses and the weight attributable to their testimony are
primarily matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E. 2d
212 (1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all
or any part of each witness’s testimony. State v. Antill, 176 Ohio St. 61, 197 N.E. 2d
548 (1964).
{¶24} “[T]he 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) at 3 citing In re Minadeo,
V79-3435jud (10-31-80).
{¶25} Upon review of the case file and with full and careful consideration given to the
testimony and arguments presented at the hearing, we find the applicant has met her
burden of proof that she was a victim of criminally injurious conduct. We believe the
applicant has made a prima facie case based upon the credible testimony of the
applicant, the contemporaneous statements of the applicant elicited in the adult triage
report, and Doctor Penhos’ letter. Accordingly, the burden of proof shifted to the
Attorney General to rebut the presumption created by the applicant. The Attorney
General failed to do so. Applicant’s evidence was admitted without objection, the
evidence’s veracity was not questioned and no contra witnesses were presented.
Accordingly, based on the Attorney General’s failure to rebut the presumption we find
that the applicant qualifies as a victim of criminally injurious conduct and the Attorney
General’s Final Decision is reversed.
{¶26} IT IS THEREFORE ORDERED THAT
Case No. V2011-60930 - 6 - ORDER
{¶27} Applicant’s Exhibits 1, 2, and 3 are admitted into evidence;
{¶28} State’s Exhibit A is admitted into evidence;
{¶29} The November 14, 2011 decision of the Attorney General is REVERSED and
judgment is rendered in favor of the applicant;
{¶30} This claim is remanded to the Attorney General for calculation of economic loss
and decision;
{¶31} This order is entered without prejudice to the applicant’s right to file a
supplemental compensation application, within five years of this order, pursuant to R.C.
2743.68;
{¶32} Costs are assumed by the court of claims victims of crime fund.
_______________________________________
E. JOEL WESP
Presiding Commissioner
_______________________________________
SUSAN G. SHERIDAN
Commissioner
_______________________________________
NECOL RUSSELL-WASHINGTON
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\June - Sept 2012\V2011-60930 Henderson.wpd\DRB-tad
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 6-27-12
Jr. Vol. 2283, Pgs. 78-84
Sent to S.C. reporter 10-18-12