[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
