[Cite as In re Mitchell, 2012-Ohio-4679.]


                                                   Court of Claims of Ohio
                                                      Victims of Crime Division
                                                                           The Ohio Judicial Center
                                                                 65 South Front Street, Fourth Floor
                                                                              Columbus, OH 43215
                                                                      614.387.9800 or 1.800.824.8263
                                                                                 www.cco.state.oh.us



IN RE: LISA M. MITCHELL


LISA M. MITCHELL

            Applicant


Case No. V2010-50396

Commissioners:
Susan G. Sheridan, Presiding
William L. Byers IV
Necol Russell-Washington

ORDER OF A THREE-
COMMISSIONER PANEL

{¶1} On June 26, 2007, the applicant, Lisa Mitchell, filed a compensation application as
the result of the death of her son Christopher Mitchell. The claim was assigned Claim
No. V2007-52379-0, by the Attorney General.                Although the Attorney General
determined in a finding of fact and decision that Christopher Mitchell qualified as a
victim of crime and the applicant was granted an award of reparations in the amount of
$949.74, which represented $858.25 for payment of the funeral expense to FJ Corrigan
Funeral Services and $91.49 to the applicant for lost wages she suffered to attend her
son’s funeral, the Attorney General denied the applicant’s claim for counseling
expenses pursuant to R.C. 2743.51(F)(2), since the applicant did not qualify as an
immediate family member under R.C. 2743.51(W). Upon reconsideration, the Attorney
General rendered a Final Decision refusing to modify the initial decision and asserting
that the applicant was not eligible because she did not reside in the same household as
her son. Consequently, her claim for additional work loss was denied.
{¶2} On May 5, 2008, the applicant filed an appeal from the Attorney General’s Final
Decision of April 18, 2008.            The Court of Claims assigned this appeal Claim No.
Case No. V2010-50396                       - 2 -                                 ORDER


V2008-30421. On January 22, 2009 at 11:25 A.M., a panel of commissioners heard
the appeal. At that time it was determined that the applicant’s claim that she was a
victim in her own right or an indirect victim was not ripe for appeal since the Attorney
General’s office had not investigated that issue.      Consequently, the applicant was
directed to file a compensation application on her own behalf.
{¶3} On April 6, 2009, the applicant filed a compensation application asserting that she
was a victim in her own right as the result of the murder of her son, Christopher Mitchell.
On August 4, 2009, the Attorney General issued a finding of fact and decision denying
the applicant’s claim.   The Attorney General asserted that she did not have direct
awareness of the crime and did not arrive on the scene in the immediate aftermath of
the crime. Accordingly, the applicant did not satisfy the requirements contained in In re
Clapacs (1989), 58 Ohio Misc. 2d 2 and her claim was denied.
{¶4} On August 13, and 31, 2009, the applicant filed requests for reconsideration.
Applicant asserted she qualified as an indirect victim of crime since she was the mother
of the murder victim, was permitted access to the crime scene by police, and suffered
psychological injury which impeded her daily life.     On March 8, 2010, the Attorney
General rendered a Final Decision again finding that the applicant did not prove she had
direct awareness of the crime or had come upon the scene in its immediate aftermath.
Furthermore, the applicant has been unable to prove, by a reasonable degree of
medical or psychological certainty, that her medical expenses were related conditions
caused by her son’s death.
{¶5} On April 2, 2010, the applicant filed a notice of appeal from the March 8, 2010
Final Decision of the Attorney General. Hence, a hearing was held before a panel of
commissioners on November 17, 2010 at 12:15 P.M.
{¶6} On June 24, 2011, a panel of commissioners rendered a decision affirming the
Final Decision of the Attorney General.      The panel heard testimony presented by
Detective Kathleen Carlin of the Cleveland Division of the Police Homicide Unit.
Detective Carlin testified to the best of her knowledge Lisa Mitchell was never present at
Case No. V2010-50396                        - 3 -                                 ORDER


the crime scene on the day of the murder. Furthermore, the detective was unaware of
whether Ms. Mitchell ever went to the crime scene or the coroner’s office. Finally, the
detective stated that the apartment was orderly, there were no signs of a struggle, and
the decedent’s bloody clothing and a towel were removed prior to the applicant’s arrival
outside the crime scene. The applicant did not attend the hearing so she was unable
to cross-examine the detective or provide testimony concerning her observations at the
crime scene.
{¶7} On July 18, 2011, the applicant filed a notice of appeal from the Decision of the
Panel of Commissioners to a judge of the Court of Claims. On November 4, 2011, a
hearing was held before a judge of the Court of Claims. On November 22, 2011,
Judge Travis rendered a decision remanding this claim to a panel of commissioners
since:
          a.           “the panel of commissioners did not have the opportunity to fully
               consider all the relevant evidence in this matter. Therefore, in the interest
               of justice, the court will remand applicant’s claim to a three commissioner
               panel to consider applicant’s testimony and additional evidence presented
               by the parties.”
          b.           The hearing based on the judge’s remand was held on February
               22, 2012 at 10:00 A.M.
{¶8} The applicant, Lisa Mitchell, and Assistant Attorney General Matthew Hellman
attended the hearing and presented testimony and oral arguments for the panel’s
consideration.
{¶9} The applicant contends that she went to the crime scene after the incident and
although her son’s body was gone, “part of his remains were present.” Due to her
witnessing the scene she suffered severe psychological injury so disabling that she has
been unable to return to work. The applicant also related that the following month her
father died of a massive heart attack and eight months later her mother died.
Case No. V2010-50396                     - 4 -                                 ORDER


{¶10} Establishing whether the applicant is a victim in her own right is dependent upon
the testimony of the applicant. Even if the applicant proves that she saw her son’s
remains, she must present sufficient evidence to tie her psychological counseling to her
son’s death rather than the subsequent deaths of her parents.
{¶11} The applicant testified that she arrived on the crime scene approximately one
hour after her son’s body was removed and she did not go into her son’s apartment at
that time. She did not go to the coroner’s office to view his body. However, two days
after the incident she went to her son’s apartment and viewed blood and brain matter on
the floor. She stated that the apartment was in disarray with drawers opened and
furniture moved. She asserted that her son was a meticulous housekeeper so the
disruption of the apartment was very noticeable to her. Finally, she described how
someone had attempted to wipe the blood off the floor but such attempt was
unsuccessful and blood and brain matter remained.
{¶12} The applicant described how she immediately entered counseling after the
incident. She participated in Victim’s Assistance counseling, counseling provided by
her employer, until her personal insurance ran out.     She asserted she still attends
counseling since her relocation to South Carolina and receives medication to help her
cope with her loss.
{¶13} Upon cross-examination, the applicant admitted that she was working at Trader
Joe’s and attending school at the time of the crime. She was also working at Brehms
Orthopedics as a worker’s compensation coordinator. After her son was killed, she left
the job at Brehms Orthopedics, after taking a short leave of absence she returned to
work for Trader Joe’s for another three months. She asserted she tried to commit
suicide on September 11, 2009 and never returned to Trader Joe’s after that incident.
{¶14} A week after her son’s death she started counseling.        Initially she saw the
Cuyahoga County Coroner’s Grief Counselor. There was no cost for this service. She
then saw Dr. Jeffrey Salkin, her insurance covered this cost although she was required
to pay co-pays. She stated she started counseling with Dr. Salkin approximately a
Case No. V2010-50396                       - 5 -                                 ORDER


week prior to the death of her father. Ms. Mitchell related that she saw Dr. Salkin for
issues relating to grief suffered as the result of the murder of her son, the death of her
father, marital issues, and problems she was having with her daughter. Ms. Mitchell
contends that her marital problems, trouble with her father, and the subsequent death of
her father related to the death of her son, however she does not attribute the death of
her mother, who died approximately eight months after her father’s death, to the death
of her son. Whereupon, the applicant’s testimony was concluded.
{¶15} In closing the applicant described the emotional toll her son’s death has taken on
her life. She described it as a life changing event, one she must cope with on a daily
basis.
{¶16} The Attorney General asserted for this panel to find that the applicant qualified as
a victim in her own right, the panel must rely on In re Hill, V2003-41158tc (3-24-04)aff’d
jud (6-9-04). The Attorney General stated upon the testimony presented at the hearing
there might be sufficient grounds to qualify the applicant based on the holding in Hill.
However, even if that result is reached the question still remains as to what her losses
are.
{¶17} The problem with work loss is that she continued to work at Trader Joe’s until her
attempted suicide which occurred on September 11, 2009. It appears any work loss
she sustained was not the result of the murder of her son, but the attempted suicide.
{¶18} It appears from testimony, that the applicant went to counseling immediately after
the murder of her son. However, initially there was no cost for the counseling services.
Later she did incur out-of-pocket expense but she has been treated for a variety of
issues:   the death of her parents, marital trouble, problems with her daughter,
attempted suicide, and the death of her son.          Accordingly, it is unknown what
percentage of the counseling expenses are related to the death of her son.
Accordingly, this is a very difficult case which raised a variety of issues which the panel
must grapple with.
Case No. V2010-50396                         - 6 -                               ORDER


{¶19} Finally, the applicant stated that she had to return to work at Trader Joe’s since
she was the sole bread winner in the family. Furthermore, she reduced her working
hours from 38 to 27 hours per week. The applicant submitted an attorney fee bill she
received from her former attorney Gregory Robey that was identified as Applicant’s
Exhibit 1 and admitted into evidence. Whereupon, the hearing was concluded.
{¶20} On March 21, 2012, the applicant filed a letter from Trader Joe’s dated March 15,
2012. The letter in pertinent part stated:
          a.           “This is to confirm that Lisa Mitchell was employed at Trader Joe’s
               Company from 09/21/2005 through 4/03/2010.
          b.           “While employed, Ms. Mitchell went on two leave of absences as
               follows:
          c.           “9/21/2007 to 11/15/2007 Personal
          d.           “9/11/2009 to 4/03/2010       Medical”
{¶21} On April 3, 2012, the Attorney General filed a reply to the applicant’s additional
documents.      The Attorney General submits that the letter from Trader Joe’s
demonstrates that the first work loss incurred by the applicant happened over three
months after the death of her son. Furthermore, her weekly hours were consistent with
the hours worked prior to her son’s death. The Attorney General states: “[i]n light of
this, Ms. Mitchell’s leave of absence from work does not - in and of itself - establish the
necessary degree of debilitating injury.”
{¶22} Based upon the Supreme Court holdings in Paugh v. Hanks (1983), 6 Ohio St. 3d
72, 6 OBR 114 451 N.E. 2d 83 and Burris v. Grange Mut. Cos. (1989), 46 Ohio St. 3d
84, 545 N.E. 2d 83, the Court of Claims has espoused certain qualitative factors to be
examined when determining who may qualify as a victim in their own right.
{¶23} In re Clapacs (1989), 58 Ohio Misc. 2d 1, at paragraphs one and two of the
syllabus states:
          a.           “1. The Court of Claims, Victims of Crime Division, will use a
               case-by-case analysis to ascertain the impact a criminal incident may
Case No. V2010-50396                          - 7 -                                  ORDER


               have upon a person other than the individual directly involved in the crime
               and will consider, inter alia, the following factors: (a) the person’s proximity
               to the location of the crime, (b) the relationship between that person and
               the person actually assaulted, and (c) the shock directly attributable to the
               sensory and contemporaneous observance of the incident.                   (R.C.
               2743.51(L), applied).
          b.           “2. The phrase ‘personal injury’ contained in the R.C. 2743.51(L)
               definition of ‘victim’ includes both psychological injury as well as physical
               harm.    Thus, emotional distress, experienced as a result of criminal
               activity, constitutes ‘personal injury’.”
          c.           In re Fife (1989), 59 Ohio Misc. 2d 1, at paragraph two of the
               syllabus states:
          d.           “2. The term ‘personal injury,’ as used in R.C. 2743.51(L)(1) in
               reference to a psychological injury, requires a showing of more than mere
               sorrow, concern or mental distress. That is, the psychological injury must
               be of such a debilitating nature as to impede or prohibit the resumption or
               enjoyment of day-to-day activities.”
{¶24} This court recognized in Clapacs and Fife, that emotional distress due to a direct
awareness of a criminal incident can be classified as personal injury. As such, persons
other than the victim per se may qualify as victims in their own right. The determination
of whether a person qualifies as a victim in one’s own right is to be based upon a
case-by-case analysis. See Clapacs. Additionally, the court also determined that the
psychological injury suffered by the injured party must be so debilitating that it impedes
or prohibits participation in day-to-day activities. The court emphasized that one must
analyze the nature of the alleged injury and its relationship to the criminal incident. See
Fife. Subsequently, a panel of commissioners In re Anderson (1991), 62 Ohio Misc. 2d
268, 598 N.E. 2d 223, modified the contemporaneous sensory perception requirement
to allow for instances where an individual arrives at the scene shortly after the incident.
Case No. V2010-50396                       - 8 -                                   ORDER


Also in Anderson, the court recognized that the rationale in Clapacs would not be
viewed to open a floodgate for fraudulent or imagined injury claims.             In re Hill,
V2003-41158jud (6-9-04), 2004-Ohio-4169.
{¶25} The applicant has the burden to prove she is a victim by a preponderance of the
evidence. See Clapacs and Fife.
{¶26} The applicant must prove criminally injurious conduct by a preponderance of the
evidence. In re Rios (1983), 8 Ohio Misc. 2d 4.
{¶27} 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.”
{¶28} 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
{¶29} 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.”
{¶30} From review of the case file, the subsequent filings of the parties, and upon full
and careful consideration given to the testimony of the applicant and the arguments of
the parties, we find the applicant has failed to prove, by a preponderance of the
evidence that she qualifies as a victim in her own right pursuant to the holdings of
Clapacs and Fife.
{¶31} In order for the applicant to qualify as a victim in accordance with the holdings of
Clapacs and Fife she must meet all the conditions. In other words the applicant must
establish by a preponderance of the evidence that 1) she had a relationship with the
primary victim, 2) she had a direct awareness of the criminally injurious conduct or
arrived at the scene in its immediate aftermath, 3) she experienced shock directly
attributable to the sensory and contemporaneous observation of the crime scene, and
4) she sustained severe psychological injury which impeded or prohibited her from
Case No. V2010-50396                       - 9 -                                 ORDER


performing or enjoying her daily activities.       This psychological injury must be more
severe than mere sorrow or grief.
{¶32} We find the applicant met the first prong of the test enumerated in Clapacs and
Fife since the primary victim was her son. Without specifically addressing whether
applicant met the second and third prongs of the Clapacs and Fife test, we find that
applicant does not qualify as a victim in her own right because applicant has not
satisfied the fourth prong of the test - severe psychological injury which impeded or
prohibited her from performing or enjoying her daily activities.
{¶33} The applicant testified at the time of the crime she was attending the National
Institute of Technology in Akron from which she subsequently received a degree. She
was working at both Brehms Orthopedics and Trader Joe’s at the time of the incident.
She stated she terminated her employment with Brehms within a week of her son’s
death but continued working at Trader Joe’s. The letter from Trader Joe’s reveals she
did not take time off until September 21, 2007 over three months after her son’s death.
A review of the applicant’s work history as provided by the Attorney General in his filing
of April 3, 2012, reveals the following: From October 2, 2005 until June 10, 2007, she
worked an average of 45.3 hours per pay period, after her son’s death until September
21, 2007 she worked an average of 49.9 hours per pay period, and from her return from
personal leave until April 26, 2009, the latest data provided by the Attorney General,
she worked an average of 59 hours per pay period. Accordingly, we find no correlation
between the death of her son and her working hours.
{¶34} By contrast in In re Freeman, V2000-02330tc (1-14-02) aff’d jud (4-23-02) a
mother who observed her son in a bloodied condition in a hospital room in preparation
for surgery which he did not survive, was unable to return to work for six months, while
in Santiago, the applicant was unable to work for eight weeks.
{¶35} The period of work loss is not the sole factor in judging whether the shock
attributable to the observation caused the requisite psychological trauma.        Such a
finding must be supported by a counselor, psychologist, psychiatrist, psychotherapist, or
Case No. V2010-50396                                              - 10 -                                        ORDER


mental health counselor who provides an opinion within a reasonable degree of medical
or psychological certainty that the applicant sustained severe psychological injury which
impeded or prohibited her from performing or enjoying her daily activities. The case file
lacks such documentation. Mere sorrow, concern or mental distress are not sufficient
to satisfy the psychological trauma necessary to qualify as an indirect victim.
 {¶36} Accordingly, we find the applicant has not satisfied her burden of proof and the
panel’s decision of June 24, 2011 is adopted.
 {¶37} IT IS THEREFORE ORDERED THAT
 {¶38} Applicant’s Exhibit 1 is admitted into evidence;
 {¶39} Applicant’s claim is DENIED and judgment is rendered for the state of Ohio;
 {¶40} Costs are assumed by the court of claims victims of crime fund.




                                                                      _______________________________________
                                                                      SUSAN G. SHERIDAN
                                                                      Presiding Commissioner



                                                                      _______________________________________
                                                                      WILLIAM L. BYERS, IV
                                                                      Commissioner



                                                                      _______________________________________
                                                                      NECOL RUSSELL-WASHINGTON
                                                                      Commissioner

ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\March - May 2012\V2010-50396 Mitchell.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
Case No. V2010-50396            - 11 -   ORDER


Jr. Vol. 2282, Pgs. 136-140
Sent to S.C. reporter 10-9-12
