[Cite as In re Mitchell, 2011-Ohio-4269.]


                                               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: LISA M. MITCHELL


LISA M. MITCHELL

            Applicant


Case No. V2010-50396

Commissioners:
Karl C. Kerschner
Elizabeth Luper Schuster
Susan G. Sheridan

ORDER OF A THREE-
COMMISSIONER PANEL

          {1}On April 6, 2009, the applicant, Lisa Mitchell, filed a compensation
application as the result of the murder of her son on June 18, 2007. On August 4,
2009, the Attorney General issued a finding of fact and decision determining that the
applicant did not qualify as a victim of criminally injurious conduct as the result of the
death of her son. Pursuant to the holding in In re Clapacs (1989), 58 Ohio Misc. 2d 1,
a person can qualify as a victim if they meet the following criteria:
          {2}1) The person has a close relationship with the one upon whom the crime
          was committed;
          {3}2) The person had a direct awareness of the crime or arrived in the
          immediate aftermath; and
          {4}3) The person sustained psychological injury so severe that it impeded or
          prohibited the person from doing or enjoying his or her day-to-day activities.
          {5}In the case at bar, the Attorney General found the applicant did not have
direct awareness of the crime committed against her son and did not arrive in the
Case No. V2010-50396                    - 2 -                                ORDER


immediate aftermath of the crime. Accordingly, the applicant’s claim was denied. On
August 13, and 31, 2009, the applicant submitted requests for reconsideration. On
Case No. V2010-50396                      - 3 -                                  ORDER


March 8, 2010, the Attorney General rendered a Final Decision finding no reason to
modify its initial decision. 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 Commissioners Ostry, Kerschner, and Schuster on November 17, 2010 at 12:15
P.M.
        {6}Assistant Attorney General Amy O’Grady appeared on behalf of the state of
Ohio. However, neither the applicant nor her attorney attended the hearing.
        {7}The Attorney General related that the two issues presented by this appeal
were: 1) whether the applicant qualified as an indirect victim as the result of the murder
of her son; and 2) whether the medical expenses submitted were directly related to
expenses incurred as the result of the alleged victimization. However, the Attorney
General asserts that the applicant has not met her burden of proof with respect to either
of these issues, and accordingly, the Attorney General’s Final Decision should be
affirmed.
        {8}Detective Kathleen Carlin, Cleveland Division of Police Homicide Unit, was
called to testify via telephone. Detective Carlin related she was assigned to handle the
investigation of the death of Christopher Mitchell.       She testified concerning the
investigation of the crime scene.     The crime scene was sealed by the Cuyahoga
County Coroner’s Office for approximately 24 hours. The officer testified that she was
at the crime scene for approximately five hours.        To the best of the detective’s
knowledge, the applicant never came to the crime scene on the day of the incident.
She did not know if Ms. Mitchell ever went to the crime scene or to the coroner’s office.
Detective Carlin related her office received a call from Lisa Mitchell on June 19, 2007,
the day after the incident, that unknown individuals were entering the crime scene and
Case No. V2010-50396                        - 4 -                                ORDER


removing the decedent’s personal property.          However, a followup investigation
revealed that the crime scene had not been disturbed. Although the applicant was
apprised of the events surrounding her son’s death, Ms. Mitchell was unable to provide
the police with any useful information.
        {9}Based upon a question posed by a commissioner, the detective testified that
the applicant was never present at the crime scene during the time her son’s body
remained there. Whereupon the testimony of Detective Carlin was concluded.
        {10}In conclusion, the Attorney General stated that the applicant has failed to
prove by a preponderance of the evidence that she was a victim in her own right. The
Attorney General asserted the only evidence presented by the applicant is contained in
her brief, but based on the testimony of Detective Carlin it is clear the applicant was not
at the crime scene in the presence of her son’s body. Furthermore, the apartment was
orderly, there were no signs of a struggle and the decedent’s bloody clothing and a
towel were removed from the crime scene before the applicant’s arrival. Due to the
fact that the applicant chose not to testify, it is unclear what she saw when she entered
the decedent’s apartment.     In summary, the Attorney General believes        insufficient
evidence has been submitted to show the psychological injury was severe enough to
cause or impede the applicant’s enjoyment of her day-to-day activities. Whereupon,
the hearing was concluded.
        {11}In order to qualify as an indirect victim of crime an applicant must present
evidence regarding the following factors:
        {12}1) the person’s proximity to the location of the crime;
        {13}2) the relationship between the person and the person actually assaulted or
        killed; and
        {14}3) the shock directly attributable to the sensory and contemporaneous
        observance of the incident.
Case No. V2010-50396                        - 5 -                                    ORDER


         {15}In addition, the psychological injury must be of such a debilitating nature as
         to impede or prohibit the resumption or enjoyment of day-to-day activities. In
         re Clapacs, supra; In re Fife (1989), 59 Ohio Misc. 2d 1.
         {16}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.”
         {17}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.”
         {18}On April 6, 2011, a notice was issued informing the parties that pursuant to
Rule 1.12(b) of the Rules of Professional Conduct Commissioner Randi M. Ostry was
recusing herself. The parties were given the option of having the case at bar decided
by the two remaining commissioners; allow a randomly selected third commissioner to
review the case file and hearing a reach a decision together with the two sitting
commissioners; or have the case reheard.
         {19}On April 13, 2011 and April 15, 2011, the Attorney General and the
applicant respectively, filed notices of selection requesting a randomly selected third
commissioner to be chosen to review the case at bar and come to a decision with the
two sitting commissioners. Commissioner Susan G. Sheridan was randomly selected
and upon a full and careful review of the case file, hearing and deliberation with the two
sitting commissioners the following decision was rendered.
Case No. V2010-50396                      - 6 -                                  ORDER


        {20}Upon review of the file and with full and careful consideration given to the
testimony presented at the hearing, we find the applicant has failed to prove, by a
preponderance of the evidence, that she qualifies as an indirect victim of crime pursuant
to the holdings of In re Clapacs and In re Fife. We found the testimony of Detective
Carlin to be persuasive with respect to the applicant’s failure to view the crime scene in
the presence of her son’s body. Furthermore, the failure of the applicant to appear at
the hearing deprived this panel the opportunity to determine exactly what the applicant
saw, experienced, and felt when she went to her son’s apartment. The applicant has
the burden to prove each and every element of her case to establish eligibility; she
failed to do so in this case. Accordingly, the Final Decision of the Attorney General is
affirmed.
        IT IS THEREFORE ORDERED THAT
        {21}1) The March 8, 2010 decision of the Attorney General is AFFIRMED;
        {22}2) This claim is DENIED and judgment is rendered in favor of the state of
Ohio;
Case No. V2010-50396                                         - 7 -                            ORDER


             {23}3) Costs are assumed by the court of claims victims of crime fund.




                                                               _______________________________________
                                                               KARL C. KERSCHNER
                                                               Commissioner



                                                               _______________________________________
                                                               ELIZABETH LUPER SCHUSTER
                                                               Commissioner



                                                               _______________________________________
                                                               SUSAN G. SHERIDAN
                                                               Commissioner

ID #I:\VICTIMS\2010\50396\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 6-24-11
Jr. Vol. 2279, Pgs. 41-46
Sent to S.C. Reporter 8-23-11
